A v Boulton

Case [2004] FCAFC 101

FEDERAL COURT OF AUSTRALIA

A v Boulton [2004] FCAFC 101

PRACTICE & PROCEDURE – statutory interpretation – Australian Crime Commission – appeal from a single Judge – examination for purposes of a ‘special operation/investigation’ – where appellant not yet charged but claimed that a charge was imminent –whether Australian Crime Commission Act 2002 (Cth) abrogates privilege against self-incrimination.

Australian Constitution, Ch III
Judiciary Act 1903 (Cth) ss 39B, 78A(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Australian Crime Commission Act 2002 (Cth) ss 4, 7A, 12(1), 24A, 25A, 28, 29, 30, 46B
National Crime Authority Legislation Amendment Act 2001 (Cth)
Acts Interpretation Act 1901 (Cth), s 15AB

Hammond v The Commonwealth (1982) 152 CLR 188 cited
HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 cited
Mansfield v Australian Crime Commission [2003] FCA 1059 cited

Toowoomba Foundry Pty Ltd v The Commonwealth (1945) 71 CLR 545 referred to
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 referred to
Sorby v The Commonwealth (1983) 152 CLR 281 considered
Re Bolton; ex parte Beane (1987) 162 CLR 514 referred to
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 561 cited
Hamilton v Oades (1989) 166 CLR 486 cited
Hill v Crook (1873) LR 6 HL 265 referred to
Bropho v Western Australia (1990) 171 CLR 1 referred to
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 referred to
Griffin v Pantzer [2004] FCAFC 113 referred to
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 referred to
Police Service Board v Morris (1985) 156 CLR 397 referred to
Mortimer v Brown (1970) 122 CLR 493 referred to
Clyne v Commissioner of Taxation (1985) 8 FCR 130 referred to
Australian Securities and Investments Commission v Loiterton (2000) 101 FCR 370 referred to
Grant v Deputy Commissioner of Taxation [2000] FCA 1298 referred to
C v National Crime Authority (1987) 78 ALR 338 referred to
R v Holmes (unreported, Supreme Court of Tasmania, Cox CJ, 17 December 1996) referred to

Re Mining Houses of AustraliaLtd (1981) ACLC 40-744 referred to
ReBull [1998] 2 Qd R 224 cited
Sogelease Australia Ltd v Griffin [2003] NSWSC 178 cited

A V WILLIAM MCLEAN BOULTON, EXAMINER, AUSTRALIAN CRIME COMMISSION, AUSTRALIAN CRIME COMMISSION AND ATTORNEY-GENERAL OF THE COMMONWEALTH

V 198 OF 2004

BEAUMONT, DOWSETT & KENNY JJ
30 JUNE 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 198 OF 2004

AN APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

A
APPELLANT

AND:

WILLIAM MCLEAN BOULTON, EXAMINER, AUSTRALIAN CRIME COMMISSION
FIRST RESPONDENT

AUSTRALIAN CRIME COMMISSION
SECOND RESPONDENT

ATTORNEY-GENERAL OF THE COMMONWEALTH
THIRD RESPONDENT

JUDGES:

BEAUMONT, DOWSETT & KENNY JJ

DATE OF ORDER:

30 JUNE 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first and second respondents; no order be made for the costs of the third respondent.

Note:    Settlement…

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A v Boulton [2004] FCAFC 101
Case
[2004] FCAFC 101
Decision Date

CaseChat Overview and Summary

In the case of A v Boulton, the appellant challenged the legality of the Crime (Confiscation of Proceeds) Act 2004 (NSW) in relation to its abrogating effect on the privilege against self-incrimination. The dispute was heard by the court, which had to determine whether the Act indeed abrogated this privilege and, if so, whether such abrogation was beyond the legislative power or permissible within the context of the statutory framework. The appellant's counsel presented several arguments, including the proposition that the Act did not abrogate the privilege, and if it did, it would be beyond the power of the legislature, and that the second respondent should not be permitted to examine the appellant regarding a crime for which he was under investigation.

The court addressed each of the appellant's submissions in turn, starting with the argument that the Act did not abrogate the privilege against self-incrimination. The appellant's counsel contended that section 30(4) of the Act limited the use of answers given by a witness who claimed that the answers "might tend to incriminate" them, but this did not imply an abrogation of the privilege. The court disagreed, noting that section 30(5) provided "direct use immunity" which, when read in conjunction with section 30(4), indicated an intention to abrogate the privilege. The court referenced the decision in Pyneboard Pty Ltd v Trade Practices Commission, which stated that an intention to abrogate the privilege might be more readily implied in matters where an obligation is imposed to assist an administrative agency. The decision in Mansfield v Australian Crime Commission further supported the court's view that the Act had abrogated the privilege.

The court's reasoning was grounded in the principle that legislation will not be construed to deprive a person of an important common law right, privilege, or immunity unless a legislative intent to do so clearly emerges. The court found that the language, character, and purpose of the Act indicated a necessary implication of abrogation of the privilege against self-incrimination. The court also noted that the Act provided compensatory protection to the witness, aligning with the principle that when a legislature abrogates this privilege, it often gives compensatory protection.

The final orders of the court were that the appeal be dismissed, and the appellant was to pay the costs of the first and second respondents, with no order made for the costs of the third respondent.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the costs of the first and second respondents; no order be made for the costs of the third respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Counsel for the appellant, Mr Faris QC, advanced several (alternative) contentions as follows:·the Act did not abrogate the privilege against self-incrimination;·if, contrary to his primary contention, the Act did abrogate the privilege, it would be beyond power; and·the second respondent should not be permitted to examine the appellant in relation to a crime for which he was being investigated, and in relation to which, he believed, he was shortly to be charged.THE DECISION OF THE PRIMARY JUDGE It will be convenient to deal with his Honour’s consideration of each of the appellant’s submissions in turn.Did the Act abrogate the privilege? His Honour noted the appellant’s submission that subs 30(4) limited the use of any answers given at an examination by a witness who claimed that the answers ‘might tend to incriminate’ him or her. However, counsel submitted that subsection (4) had to be read in conjunction with s 30(5), which conferred what he described as ‘direct use immunity’ on the person, where he or she had claimed the privilege. Again, because subs 30(5) only conferred a ‘partial’ immunity, there was no necessary implication of abrogation. Specifically, Mr Faris contended:‘…we say the privilege is abrogated only in cases where the protection afforded in section 30 effectively protects the witness in all circumstances, and here it only effectively protects the witness with relation to answers.’ (emphasis added by his Honour) Rejecting the argument, the Judge said:‘Mr Faris’s submission stated the effect of s 30(5) too narrowly. The subsection provides protection not merely against the use of answers but also against the admissibility of documents or things produced. Nonetheless, he was correct in noting that the subsection does not provide protection against the use of evidence derived from such answers, documents or things.’ Citing Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 (“Pyneboard”) at 341, his Honour observed that an intention to abrogate the privilege may be more readily implied in matters where an obligation is imposed in general terms to assist an administrative agency to secure information about an offence. The primary Judge noted that, after the conclusion of argument, the decision in Mansfield v Australian Crime Commission [2003] FCA 1059 (“Mansfield”) was given, in which Carr J had held that the Act had abrogated the privilege. Carr J had said:‘… the obvious purpose of subsections (4) and (5) is to protect an examinee from the consequences of abrogation of the privilege against self-incrimination. I can think of no other purpose for these provisions. As Mason Wilson and Dawson JJ noted in [Sorby v The Commonwealth (1983) 152 CLR 281] at 310-311, when a legislature abrogates that privilege, it often gives compensatory protection to the witness. Not only do I think that abrogation of that privilege is to be implied from these three subsections, but I think that it is necessarily to be so implied. There is nothing else in the statutory context which points in any other direction and in particular no provision removing the obligation to answer on the basis of a reasonable excuse, as was the case in relation to the State Act in Sorby.’

Ratio Decidendi

Legal Principle Established

Acknowledging the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, the first and second respondents kept their submissions within a narrow compass and it is unnecessary to set them out here.CONSIDERATION I commence the consideration of the parties’ submissions with the proposition that legislation will not be construed so as to deprive a person of an important common law right, privilege or immunity, if otherwise available, “unless a legislative intent to do so clearly emerges, whether by express words or necessary implication”: see Sorby at 309 per Mason, Wilson and Dawson JJ, 289-290 per Gibbs CJ and 311 per Murphy J; Hamilton v Oades at 495 per Mason CJ, 500 per Deane and Gaudron JJ (dissenting in the result) and 509 per Dawson J; Daniels at 565, per Gleeson CJ, Gaudron, Gummow and Hayne JJ; and Griffin v Pantzer [2004] FCAFC 113 (“Griffin v Pantzer”) at [46] per Allsop J (with whom Ryan and Heerey JJ agreed). In Daniels, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed at 565:‘It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this court can be traced to Potter v Minahan [(1908) 7 CLR 277 at 304 per O’Connor J], was the foundation for the decision in Baker v Campbell [(1983) 153 CLR 52]. It is a rule which, subject to one possible exception, has been strictly applied by this court since the decision in Re Bolton; Ex parte Beane [(1987) 162 CLR 514]. Cases in which it has since been applied include Bropho v Western Australia [(1990) 171 CLR 1], Coco v R [(1994) 179 CLR 427] and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [(1997) 188 CLR 501].’ As their Honours indicated, the phrase “necessary implication” means that the courts will not discern a legislative intention to abrogate an important common law right or privilege unless this intention appears clearly and unmistakably from the legislation considered as a whole, having regard to its language, character and purpose: see also Sorby at 289 per Gibbs CJ and 309 per Mason, Wilson and Dawson JJ and Pyneboard at 341 per Mason ACJ, Wilson and Dawson JJ. Mason CJ stated in Hamilton v Oades at 495:‘[T]he phrase ‘necessary implication’ imports a high degree of certainty as to legislative intention.’It does not follow from this, however, that the phrase “necessary implication” requires that all other possible implications must be excluded and that the implication that the privilege is abrogated arises as a matter of absolute necessity. I reject the appellant’s submissions in this regard. Since the Act does not abrogate the privilege against self-incrimination expressly, unless it does so by necessary implication, in an examination under s 24A, an examinee would be entitled to refuse a question asked by an examiner if the answer would expose, or would have a tendency to expose, the examinee to conviction for a crime: see Griffin v Pantzer at [37]-[43] per Allsop J. If the Act did not abrogate the privilege, the privilege would protect the appellant not only from incriminating himself directly in the examination, but also from making a disclosure that might lead to self-incrimination or to the discovery of real evidence of an incriminating character: see Sorby at 310 per Mason, Wilson and Dawson JJ. For the reasons that follow, however, I am of the view that, having regard to the language, character and purpose of the Act, a legislative intent is necessarily to be implied that an examinee does not have the privilege in an examination under the Act.