Witness C v The Crime & Misconduct Commission

Official solicitors to the Crime and Misconduct Commission for the respondent

[1] The respondent is conducting an investigation into suspected drug activities by one G and his associates. The respondent authorised closed investigative hearings pursuant to Chapter 4 of The Crime & Misconduct Act before an authorised presiding officer in relation to these matters.

[2] The applicant has been issued with a notice requiring her to attend a hearing to give evidence relating to her knowledge of the activities of G. The applicant has been charged with a number of offences under the Drugs Misuse Act and it can be accepted that there is a co-incidence of circumstances between the conduct being investigated by the respondent and the conduct, the subject of the charges, faced by the applicant.

[3] Following objections raised by counsel for the applicant at the hearing, proceedings have been initiated in this Court, the nature of which appears in the following paragraph.

[4] The applicant seeks leave under s 195(1)(b) of the Act to appeal against an order made by the presiding officer requiring the applicant to comply with his requirement that she answer certain questions following his determination that she had a reasonable excuse based on a privilege against self-incrimination for not complying with that requirement. This determination was made pursuant to s 194(2) and as a result the protection afforded the applicant by s 197 comes into play.

[5] In addition, it was accepted that the proceedings should be treated as including an application by the applicant for declaratory relief. The declaration sought was that on its proper construction s 190 of the Act did not abrogate the applicant's right to claim privilege upon the grounds of self-incrimination.

[6] It was also accepted that the Court should treat the application for leave as the hearing of the appeal.

[7] The first of the two matters referred to above is concerned with what was described in argument as the principle in Hammond v The Commonwealth (1982) 152 CLR.

[8] As I have said the applicant currently faces a number of charges under the Drugs Misuse Act. The hearing being conducted by the respondent is concerned with the subject matter of the charges that she is facing.

[9] The effect of the judgment in Hammond can be found in the judgment of Gibbs CJ at p 199:

"Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence. In the Builders' Labourers' Case I expressed the opinion that, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court, and that the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings."

[10] The fundamental nature of the privilege against self-incrimination hardly needs emphasising. Because of the fundamental nature of such a right, statutory provisions will not be construed as abrogating such a right in the absence of clear words or necessary implication to that effect. See Daniels Corporations as a Nation Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543.

[11] Although the two issues which this application is concerned with are inter-related, they involve a consideration of different provisions of the legislation.

[12] Section 331 of the Act provides as follows:

"(1) The commission may do any or all of the following, despite any proceeding that may be in or before a court, tribunal, warden, coroner, magistrate, justice or other person -

(a) commence, continue, discontinue or complete an investigation or hearing or any part or aspect of the investigation or hearing;

(b) give a report in relation to the investigation or hearing or any part or aspect of the investigation or hearing;

(c) an act or thing that is necessary or expedient for a purpose mentioned in paragraph (a) or (b).

(2) If the proceeding is a proceeding for an indictable offence and is conducted by or for the State, the commission may, to the extent to which the commission considers it necessary to do so to ensure that the accused's right to a fair trial is not prejudiced -

(a) conduct any hearing to an investigation as a closed hearing during the currency of the proceeding; or

(b) give a direction under section 202 to have effect during the currency of the proceeding.

(a) if the proceeding is a committal proceeding - before any evidence for the prosecution is taken in the committal proceeding; or

(b) otherwise - after the proceeding stops being a proceeding for the trial of a person before a jury.

(4) This section has effect whether or not the proceeding commenced before or after the commission's investigation started and has effect whether or not the commission or a commission officer is a party to the proceeding."

[13] In Bayeh v The Attorney-General (NSW) (1995) 82 A Crim R 270 the Court was concerned with a provision in terms similar to s 331. Indeed s 331 according to the explanatory notes to the Crime & Misconduct Act makes it clear that s 331 was based upon the New South Wales provision and was intended to override the effect of the decision in Hammond.

"The express terms of s 38(1) permitting the Commissioner to carry out his inquiry notwithstanding the existence of proceedings before a legal tribunal at the time, coupled with the deliberate use of the permissive word 'may' in relation to the steps to be taken to avoid prejudicing those proceedings necessarily imply that the common law right contended for by the plaintiff has been abrogated to the extent indicated."

[15] See also White J in Witness A v The Crime & Misconduct Commission (2005) QSC 119 at paras 37 and 38, where she deals with this issue.

[16] It was not strenuously contended by counsel for the applicant here that the principle in Hammond's case survives the enactment of s 331. In my view, the principle has plainly been abrogated by the section.

[18] Section 190 of the Act is found in Subdivision 1 of Division 3 of Part 2 and is concerned with crime investigations. Section 190 provides as follows:

"(1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer. Maximum penalty - 85 penalty units or 1 year's imprisonment.

(b) to refuse to answer the question on a ground of privilege, other than legal professional privilege."

[19] Section 192 is concerned with misconduct investigations and s 192 which is similarly concerned with refusal to answer questions, is expressed in different terms to Section 190.

[20] Privilege is defined in the dictionary (Schedule 2) in the following terms:

(a) in the context of a criminal investigation - privilege recognised at law on the ground of -

and includes a claim on the ground of confidentiality.."

[21] The issue with which I am concerned came before White J in Witness A v The Crime & Misconduct Commission (supra). Her Honour dealt with it in somewhat emphatic terms in paragraph 31:

"Nothing could be clearer than that s 190 of the Act abrogates the privilege against self-incrimination. Once abrogated, it is complete. In A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 Kenny J at 428, with whose reasons Beaumont and Dowsett J agreed, cited a passage from a decision of the Court of Final Appeal of the Hong Kong Special Administrative Region in HKSAR v Lee Ming Tee [2001] HKCFI 500; [2001] 1 HKLRD 590,

'Where as in the present case, the words of the statute clearly abrogate the privilege and substitute for it a limited direct use prohibition, the privilege is abrogated in its entirety and the scope of the substituted protections, if any, becomes a matter of statutory construction.'

Section 190 so far as it relates to the privilege against self-incrimination must be read with s 194(2)(a) and (b) which, if the privilege is accepted and an answer is required, bring in the application of s 197."

[22] Before me counsel for the applicant pointed out that Her Honour gave judgment without any express adversion to the judgment of the Court of Appeal in Callanan v B [2004] QCA 478; [2005] 1 Qd R 348 which was given on 10 December 2004, some six months earlier.

[23] That judgment was concerned with the question whether there existed in Queensland a form of privilege described as spousal privilege which vested in the spouse of a person and which permitted the spouse to refuse to answer questions which might tend to incriminate his or her spouse and if so, whether it survived the enactment of The Crime & Misconduct Act.

[24] As McPherson JA pointed out a significant part of s 190(2)(b) was rendered nugatory because of the defective drafting of the definition of privilege.

[25] He dealt with the impact of this upon the issue facing the Court at paragraphs 13, 14 and 15 of his judgment. The other members of the Court agreed with him.

"(13) It may be accepted that, viewing s 190(2)(b) in isolation, the intention was to abrogate all forms of privilege from answering questions except legal professional privilege. The problem created by the intrusion of the Dictionary meaning is that, possibly inadvertently, it produces a limiting effect on s 190(2)(b). Instead of simply restricting the surviving privilege to legal professional privilege, it incorporates, but only to abolish, another specified ground of privilege, namely self-incrimination. Paragraph (a) says nothing about other forms of privilege recognised at law, such as public interest immunity or parliamentary privilege. What is more, it leaves the stated exception ('other than legal professional privilege') to qualify only legal professional privilege, leaving it with no useful function to perform. Interpreted literally, however, it has the consequence of disentitling a person from refusing to answer a question only on the ground of self-incrimination or legal professional privilege, while allowing other forms of privilege recognised at common law, including spousal privilege, to remain untouched.

(14) It seems improbable that this was the legislative intention. Our attention was called to the provisions of s 4 and s 5 of the Crime and Misconduct Act, in which one of the main purposes of the Act is sated to be 'to combat and reduce the incidence of crime', and to arm the Commission with investigative powers not ordinarily available to the police service. This, however, is not to say that all forms of privilege were intended to be abolished, and indeed s 190(2)(b), standing alone, shows it was not the legislative intention. But the superimposition of the definition of privilege in Schedule 2 renders it uncertain precisely which forms of privilege were intended to be abolished and which of them preserved. The Explanatory Notes to the Bill were relied on. In relation to clause 190 of the Bill, now s 190 of the Act, the Notes state that a witness at a Commission hearing 'may only refuse to answer on the ground of legal professional privilege'. If nothing more than that had been said, the intention would have been clearly expressed; but it ceases to be so once the definition is applied.

(15) In any event, the question here is not simply one of discerning the legislative intention however obscurely or confusingly it may be expressed. The problem is that the legislative expression in s 190(2)(b) has, by force of the definition of privilege, been rendered ambiguous. Whatever else may be said about it, it is certainly not clear."

[26] Some emphasis was placed upon some passages in the judgment, particularly the third sentence in paragraph 14 and the second sentence in paragraph 15.

[27] However, on my reading of the judgment His Honour clearly accepted that whatever the consequences of the drafting errors were to the privilege under consideration there, s 190 was effective in abolishing the privilege against self-incrimination.

[28] It is true that in the judgment in Witness A v The Crime & Misconduct Commission (supra) no reference is made to the judgment in Callanan's case. It may be accepted that it is therefore likely that Her Honour was not referred to that judgment. However, the judgment of McPherson JA in so far as it deals with this subject (and with whom the other members of the Court agreed) is plainly to the same effect as was the judgment of Her Honour on this subject.

[29] See also the judgment of Muir J in Schultz v The Crime & Misconduct Commission (SC Brisbane 31/10/2003, 8742 of 2003, unreported).

[30] In my view, the language in which s 190(2) is expressed, plainly satisfies the test of the High Court in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (supra). The privilege against self-incrimination is abolished by s 190(2).

(a) I grant leave to appeal under s 195(1)(b) and dismiss the appeal.

(c) I order the applicant to pay the respondent's costs of and incidental to the application to be assessed.