50 The question is - do the interests of justice require that the evidence be given? There is no issue, as I have already said, about the other matters contained in s 128(5).
51 In my view the interests of justice do require that the evidence be given. My reasons are these; first, there is the nature of the charges. They are very serious and carry a high likelihood that a term of imprisonment might be imposed upon each accused if convicted.
52 Secondly, there is the importance of Mr Segal's evidence in the Crown case. It is, for the reasons I have indicated earlier, important evidence and, if it were accepted it would be compelling material in support of the Crown case.
53 Thirdly, there is the fact that the evidence sought to be adduced in the cross-examination is sought to be led by the defence and that it is capable of impinging in a substantial way on the credit of the indemnified Crown witness.
54 Fourthly, there are the interests of the accused in obtaining a fair trial, that is in the present context the ability to properly test and rebut, if it be possible, the Crown case.
55 All of those considerations in my view point firmly in the one direction and that is that the interests of justice require that the witness give the evidence.
56 There are, however, the interests of the witness, Mr George Segal, himself. There is no doubt whatever in my view that the interests of justice require a consideration of his position.
57 Mr Thangaraj has in his outline of submissions emphasised a matter that is of concern to me and which I raised yesterday with Mr Richter. A convenient way of addressing that matter is to quote the statement in Hamilton v Oades (1987) 11 NSWLR 138 at 153 where Clarke JA said:
"Once a charge is laid an accused person is, statutory exceptions apart, entitled to all the protection afforded by well-established principles of the criminal law. In particular he is not required to submit to pre-trial interrogation, nor is he amenable to the subpoena process. The Crown is obliged to prove the case against him and he is not required to assist the prosecution or to disclose his defence.
It follows that the exposure of a person charged with a criminal offence to questioning which may lead to the furnishing of incriminating answers in respect of matters at the heart of the criminal charge may cause significant prejudice to the examinee and constitutes a real interference in the administration of criminal justice."
58 Later at p 154 Clarke JA said: -
"Indeed I am of the opinion that the need to avoid any risk of injustice to a person charged with criminal misconduct is so compelling that, unless particular considerations in a given case dictate a contrary course, orders should be made to avoid the possibility that there is any trespass upon the charged person's right to a fair trial."
59 The orders of the Court of Appeal in that matter, however, were overturned by the High Court.
60 There was, as Mr Thangaraj said in his submission, no disagreement with the general nature of the principles enunciated by Clarke JA and which I have mentioned above. But at the same time the High Court determined that s 541 conferred a specific authority to compel the answering of questions, and that the authority was not displaced by the inherent power of the Supreme Court to stay civil proceedings.
61 In relation to the remarks by Clarke JA, the following comments emerge from the decision of Mason CJ (page 354 between lines B - G:
"Clarke JA considered that, because a person charged is not ordinarily required to submit to pre-trial interrogation, to reveal his defences or to produce documents under compulsion, questions asked of that person pursuant to s 541 may lead to the giving of incriminating answers in respect of matters central to the charge which may result in significant prejudice to the person charged and constitute 'a real interference in the administration of criminal justice'.
It is plain that an examination under s 541 while charges are pending may expose the witness to the risks mentioned. To the extent only that under the section rights of an accused person are denied and protections removed, an examination may even amount to an interference with the administration of criminal justice. But it is well established that Parliament is able to "interfere" with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked: see Hammond v Commonwealth (1982) 152 CLR 188; 42 ALR 327, Sorby . There has been a long history of legislation governing examinations in bankruptcy and under the Companies Acts which abrogate or qualify the right of the person examined to refuse to answer questions on the ground that the answers may incriminate him: see Rees v Kratzmann (1965) 114 CLR 63, especially at 80. In that case Windeyer J observed (at 80):
'The honest conduct of the affairs of companies is a matter of great public concern today. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy.'
This passage was cited with approval by Walsh J (with whom Barwick CJ, Windeyer and Owen JJ agreed) in Mortimer v Brown (1970) 122 CLR 493 at 499.
"The privilege against self-incrimination can only be abrogated by the manifestation of a clear legislative intention. The intention may none the less be demonstrated by reference to express words or necessary implication: Sorby (CLR at 309); Police Service Board v Morris (1985) 156 CLR 397; 58 ALR 1. But the privilege is not lightly abrogated, and the phrase "necessary implication" imports a high degree of certainty as to legislative intention."
62 There was also another passage in the judgment of Toohey J, which has been reproduced I think in the written outline of submissions. It contains a possible qualification as to the extent of questioning permissible under s 541. That passage appears in the decision of Toohey J at page 364:
"A protection against self-incrimination in the terms enunciated by the Court of Appeal gives no effective operation to s 541(12). And that is so notwithstanding the qualification expressed in the words "concern those facts which constitute the ingredients of the offences …". The areas of inquiry specified by the appellant liquidator may well concern those very facts. The power vested in the court by s541(5) to give directions as to the matters to be inquired into may be used to ensure that the matters to be inquired into are relevant to the object of the examination. And, as Barwick CJ pointed out in Mortimer v Brown , a question may be so peripheral that it would be oppressive or unjust to require an answer. It is not hard to think of other examples of oppression or injustice. Clearly, a question designed to elicit a direct admission of guilt would fall into this category . See also Huston v Costigan (1982) 45 ALR 559 at 563. But it is not enough that the answer to a question may tend to incriminate the person examined. It is precisely this sort of answer that s541(12) allows so that the affairs of the company may be relevantly investigated."
( underlining added )
63 As Oades' case itself demonstrates, there has been significant legislative movement in the last thirty years in certain statutory contexts towards the compulsion of persons to give evidence that may tend to incriminate them.
64 Because of the need to give this ex-tempore decision quickly there has not been time to research and analyse those various pieces of legislation but anecdotally one knows that they exist. In addition to s 541 of the Companies Code, which was the matter under consideration in Hamilton's case, there are modern day examples in anti terrorist laws, public protection laws, laws relating to the establishment of commissions to root out corruption and the like.
65 In my view, s 128 is itself a section that imposes a power or confers a discretion upon a Court to compel a witness to give evidence that may tend to discretion that the witness has committed an offence against an Australian law. It is not itself a statutory exception to the principles stated by Clarke JA. It does not compel the making of an order. Where, however, an order has been made requiring a person facing unresolved charges to give evidence, this may well result in a situation where incriminating evidence must be provided. The legislation addresses the interests of the witness, however, by providing a protection. That protection arises from the issue of a certificate.
66 The certificate has the effect stated in sub-s 7. I have already set out the terms of the sub-section in this decision. But it is important to note that it is a protection that provides, first, that evidence given by a person in respect of which a certificate has been given cannot be used against the person. Secondly, that evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence cannot be used against the person in any proceedings in an Australian Court.
67 Mr Richter, in part of his submissions, used the expression "the fiction of the protection". But I do not see it in that way. In my view, the protection is quite a wide one and it protects the witness not only in respect of the evidence that he has given but also in respect of the derivative type of evidence that, for example, was not protected by the terms of the legislation involved in Hamilton's case.
68 Now, it is also equally true, and I think it needs to be taken into account, that the certificate cannot give absolute protection. There are, for example, the indefinable but no doubt real prejudices that may result where a witness has given evidence of the kind dealt with in s 128 and which may as a consequence bring him into disfavour with some sections of the community or people who have previously held the witness in high regard. I suppose it is obvious that the certificate does not protect in that regard unless there is imposed some restriction on the publication of the evidence.
69 Also, as my recent decision in this trial relating to the witness Mr Agoston demonstrates, the protection may not extend to the consequences involved in disciplinary proceedings instituted against professional persons. At an even more mundane level, it might not protect a club member if he or she were sought to be blackballed at the local golf club because of adverse views taken by a majority of committee members.
70 One has to take these matters into account but, nevertheless, I consider that there is a protection; there is a wide protection, and it is a very real protection. So looking at the position of Mr Segal here, I think that it is very important to note that he will receive that important level of protection.
71 More importantly, I have come to the conclusion that, even though Mr Segal will be required to give the evidence in relation to the matters that are involved in the pending proceedings against him, there is nothing in s 128 that means that it must automatically follow for that reason that the Court is bound to find that the interests of justice do not require the witness give the evidence. To the contrary, whilst I think such a matter is a proper and important matter to take into account, in the end, in the exercise of the discretion, one has to bring that consideration into account along with all of the other matters to which I have made reference as aspects of the very wide considerations involved in the expression "the interests of justice".
72 In other words, there is no warrant in my view for reading the section as requiring automatically that the witness is not to give the evidence if the witness be required to give evidence of matters relating to proceedings that are pending against him.
73 It must also be said that, in some respects, a witness who does not face pending proceedings, but who has been required to give evidence of matters that may disclose the commission of an offence against an Australian law, is in perhaps a worse position. At least, it seems to me that the section does not require or oblige the Court to draw a distinction that would warrant a conclusion, in the case of a person facing pending charges, that the evidence must not be given for that reason alone.
74 In the matter of Collisson, to which reference has been made, I did make specific mention of the situation of a witness facing a pending trial in the context of s 128. The reference is at page 6 in the following terms:
"As I have said, he is implicated and charged in relation to the very criminal act with which the accused is charged. It would only be, in my view, in the most compelling of circumstances that he should be required prior to the resolution of the charge against him to give evidence of his involvement, if any, in that act, notwithstanding the apparent protection afforded by the certificate."
75 That position contrasts with the present matter. Mr Segal was originally charged in relation to the conspiracy charges faced by the accused. But he has now been given an indemnity in relation to those very matters so his position is rather different, it seems to me, than that of Mr Bradley in the Collisson matter. Bradley's situation was analogous to that covered by the principle in R v Booth (1982) 2 NSWLR 847. It is true that Mr Segal is facing other charges but they have nothing to do with the charges against the Ronens.
76 There is also a further point of distinction. The unreliability referred to in the Collisson matter was the unreliability that necessarily followed from an analysis of the special relationship between Mr Collisson and Mr Bradley. I need not develop that point further, but a reading of my reasons in the trial judgment of 18 February 2002, and also, more importantly, a reading of the Court of Criminal Appeal's decision in the Collisson appeal - ([2003] NSWCCA 212 paras 28-33) - demonstrate why it was inevitably the case that whatever evidence Mr Bradley may have given in that trial, it was likely to be unreliable.
77 That also contrasts with the position of Mr Segal. I have, for my part, no reason to suppose that his evidence will be unreliable. I trust that he will tell the truth when he gives his evidence before the Court. But his situation is not, because of any circumstances arising out of his relationship with the persons who are facing the serious conspiracy charges here, at all similar to that of the witness Bradley in the Collisson matter.
78 I now turn to the final evaluation of all these considerations. Having regard to all the matters I have taken into account and giving due allowance for the position of Mr Segal, I have come to the conclusion that the interests of justice require that he give the evidence. I propose to make an order requiring the witness give the evidence, that is to answer the question that has been asked and objected to, and further questions on the same subject matter, subject of course to any individual objections that may be taken to such questions. That may arise either because there is a departure from the considerations I have taken into account in coming to the conclusion I have; or because of considerations arising under s 135 of the Evidence Act. For the moment, I am satisfied that, in relation to the questions Mr Richter wishes to ask, there is no present warrant for their exclusion.
79 Finally, of course, if the questioning branches out into other areas, then that of itself would entitle either the Crown or counsel for Mr Segal to raise the issue as to whether the credibility rule applies to that particular matter. In other words, I am not suggesting that the matter is entirely at large, but I am satisfied that I should require the witness give the evidence that I have identified. I will give a certificate to the witness in respect of that evidence.
80 I wish only to add one final comment. I referred earlier to a possible qualification in the observations of Toohey J in Oades' case. I leave open for further argument the question whether any particular question in relation to the pending charges ought to be refused on the ground that is oppressive or unjust. (See also the remarks of Mahony JA in Balog v Independent Commission Against Corruption (1989) 18 NSWLR 356 at 376-377; Those remarks were not denied validity when later the High Court reversed the Court of Appeal's decision: Balog v Independent Commission Against Corruption (1990) 169 CLR 625).