A v Boulton

Case [2004] FCA 56

FEDERAL COURT OF AUSTRALIA

A v Boulton [2004] FCA 56

AUSTRALIAN CRIME COMMISSION – examination for purposes of a special Australian Crime Commission operation/investigation – applicant not yet charged but claimed that this was imminent – whether s 30 of Australian Crime Commission Act 2002 (Cth) abrogates privilege against self-incrimination – whether by not providing “derivative use immunity” as former legislation had done Parliament manifested intent not to abrogate privilege – whether Australian Crime Commission lawfully entitled to examine person likely to be charged – whether such examination amounts to contempt of court

Australian Crime Commission Act 2002 (Cth) ss 4, 4A(2), 7A, 7B(3), 12, 22, 23, 24, 24A, 25A, 28, 29, 30, 32(4), (5), 46B(1), 49B(1) and 57
Judiciary Act1903 (Cth) ss 39B, 78A

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
National Crime Authority Legislation Amendment Bill 2001: Revised Explanatory Memorandum item 12
Royal Commissions Act1902 (Cth) ss 6A(2), 6DD,
Crimes Act 1914 (Cth) s 23B(2)
Customs Act 1901 (Cth)
National Crime Authority Legislation Amendment Act 2001 (Cth)
National Crime Authority Act 1984 (Cth)

Sorby v The Commonwealth (1983) 152 CLR 281 at 289-90, 294, 298, 309, 310, 316, 317 considered
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 340, 341, 351 considered
Rees v Kratzmann (1965) 114 CLR 63 at 80 referred to
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 509 referred to
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 192 ALR 561 at 570, 572, 584-5, 597 considered
Hammond v The Commonwealth (1982) 152 CLR 188 at 198, 200, 205, 206 distinguished
Kastigar v United States 406 US 441 at 453 (1972) referred to
Commissioner of Taxation v De Vonk (1995) 61 FCR 564 at 583 referred to
Azzopardi v R (2001) 205 CLR 50 at 91 referred to
Mansfield v Australian Crime Commission [2003] FCA 1059 at [49], [65] followed
Mortimer v Brown (1970) 122 CLR 493 referred to
Commissioners of Customs and Excise v Harz [1967] 1 AC 760 at 816 referred to
HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 at 157, 166, 170 followed
Lam Chi Ming v The Queen [1991] 2 AC 212 at 218 referred to
R v Scott (1856) Dears & B 47 referred to
Regina v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1 at 30, 40 considered
Hamilton v Oades (1989) 166 CLR 486 at 496, 508 considered
R v Sang [1980] AC 402 referred to
R v Hertfordshire County Council; Ex parte Green Environment Industries Ltd [2000] 2 AC 412 referred to
Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 referred to
TheQueen v Rogerson (1992) 174 CLR 268 at 276 considered
R v Vreones [1891] 1 QB 360 at 369 referred to
R v Murphy (1985) 158 CLR 596 at 609 referred to

Justice G L Davies, “The Prohibition Against Adverse Inferences from Silence: A Rule…

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AGLC
A v Boulton [2004] FCA 56
Case
[2004] FCA 56
Decision Date

CaseChat Overview and Summary

In the case of A v Boulton, the applicant sought a declaration that he was entitled to rely on the privilege against self-incrimination during an examination conducted by the Australian Crime Commission (ACC). He also sought either prohibition or an injunction to restrain the continuation of the examination. The applicant received a summons to appear before the ACC examiner to give evidence concerning an illegal importation of cigarettes. Upon appearing, the applicant claimed that he was not required to answer the examiner’s questions, but the examiner decided that the relevant Act abrogated the privilege against self-incrimination.

The primary legal issue in the case was whether the Act abrogated the privilege against self-incrimination. The applicant argued that the privilege had its origins in England in the seventeenth century as a reaction to the "odious procedure" of the Court of Star Chamber and the Court of High Commission. The ACC, however, contended that the Act clearly provided that the privilege against self-incrimination did not apply during examinations conducted by the ACC. The court had to determine whether the privilege against self-incrimination was applicable in this case, and if not, whether the Act abrogated it.

The court examined the relevant statutory scheme and found that the Act conferred coercive powers upon the ACC to investigate serious and organised crime. The court noted that the privilege against self-incrimination had evolved over time and was now based on a deep-seated belief that those who allege the commission of a crime should prove it themselves. The court found that the Act did not expressly abrogate the privilege against self-incrimination. However, the court held that the privilege was not applicable in the context of an ACC examination because the Act impliedly abrogated it. The court found that the applicant was not entitled to rely upon the privilege against self-incrimination during an ACC examination.

The court dismissed both applications and ordered that the applicant pay the respondents' costs.

Orders

Orders of the court

1. Each application be dismissed.

2. The applicant pay the respondents’ costs.

Background

Background to the litigation

The applicant seeks a declaration that he is entitled to rely upon the privilege against self-incrimination during an examination that the ACC is presently conducting. He also seeks either prohibition, or an injunction, to restrain the continuation of that examination.BACKGROUND TO THE APPLICATION On 1 May 2003, the applicant received a summons requiring him to appear before the examiner to give evidence concerning an illegal importation of cigarettes. On 21 May 2003, the applicant appeared in answer to the summons and, by his counsel, submitted that he was not required to answer the examiner’s questions. On 27 May 2003, the examiner decided that the Act abrogates the privilege against self-incrimination, with the result that the applicant was not justified in refusing to answer questions. The examiner also decided that it was not improper to examine the applicant despite his claim that he was likely, in the future, to be charged with offences relating to the subject matter of the examination.THE STATUTORY SCHEME The ACC is a newly constituted body that replaces the National Crime Authority. It consists of a Chief Executive Officer (“the CEO”), examiners appointed under s 46B(1), and the members of the staff of the ACC. By s 7A of the Act, the ACC has the following functions: “(a)to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;(b) to undertake, when authorised by the Board, intelligence operations;(c)to investigate, when authorised by the Board, matters relating to federally relevant criminal activity;(d)to provide reports to the Board on the outcomes of those operations or investigations;(e)to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board;(f)to provide advice to the Board on national criminal intelligence priorities;(g)such other functions as are conferred on the ACC by other provisions of this Act or by any other Act.” Coercive powers are conferred upon the ACC to investigate “serious and organised crime”. Section 4 gives that expression a technical definition. In substance, it means an offence that involves two or more offenders, and substantial planning and organisation, and involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques. Section 12 provides that where the ACC, in carrying out an operation / investigation obtains evidence of an offence against a law of the Commonwealth, or of a State or Territory, being evidence that would be admissible in a prosecution for that offence, the CEO must assemble the evidence, and give it to the Attorney-General of the Commonwealth or the State, as the case requires, or the relevant law enforcement agency. Section 22 provides for the issue of search warrants. Section 23 provides for telephone applications for such warrants and s 24 provides for the seizure of passports.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WEINBERG J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

Mr Orr submitted that the Hammond principle was based upon concerns that questioning a person who had been committed to stand trial might amount to a contempt of court, or constitute an interference with the exercise of judicial power. Both these concerns, he submitted, required court proceedings to be on foot. In this sense, the Hammond principle could not be applied to the present case.CONSIDERATIONDOES THE ACT ABROGATE THE PRIVILEGE AGAINST SELF-INCRIMINATION? The privilege against self-incrimination is said to have had its origins in England in the seventeenth century as a reaction to the “odious procedure” formerly adopted by the Court of Star Chamber and the Court of High Commission: Sorby at 317 per Brennan J. In a criminal trial in these courts, accused persons were obliged to take an oath that compelled them to swear, at the outset of their investigatory examination, to answer any questions that the Court might subsequently put. It has been noted that the ex officio oath so administered was a powerful tool in the hands of the Court. See generally Justice G L Davies, “The Prohibition Against Adverse Inferences from Silence: A Rule without Reason?” (2000) 74 ALJ 26 at 31. The examination of the accused upon oath was the central feature of these proceedings. Holdsworth notes that torture was freely used in them to extort confessions or the disclosure of further information. In a helpful discussion paper, The Abrogation of the Privilege Against Self-Incrimination, dated August 2003, the Queensland Law Reform Commission observes at 7 that the traditional theory holds that it was after the Court of Star Chamber and the Court of High Commission were abolished in 1641, and the administration of the ex officio oath was subsequently forbidden, that the privilege against self-incrimination first emerged. By the second half of the seventeenth century, the privilege was said to be well established at common law. In Azzopardi v R (2001) 205 CLR 50 at 91, McHugh J observed that the privilege was developed in part “to ensure that European inquisitorial procedures would have no place in the common law adversary system of criminal justice”. The Queensland Law Reform Commission observes that recent research has raised doubts regarding the accuracy of these traditional views. It has been suggested that the privilege derives directly from Roman and ecclesiastical law, and long predates the Court of Star Chamber and the Court of High Commission. It is also said that the principle nemo tenetur se ipsum accusare, though recognised in seventeenth century England, had a much more limited application than the modern privilege against self-incrimination. Finally, it is said that criminal trials in the seventeenth century were not conducted on the basis that the privilege existed, but rather on the basis that the accused had to respond in person to the evidence led by the prosecution. In Pyneboard, the High Court said that it was not easy to assert confidently that the privilege served one particular policy or purpose. Its underlying rationale had changed in response to political and social conditions. According to the traditional view of the history of the privilege, it was originally intended as a curb on state powers. Australian courts have recently focused on the privilege as part of the common law of human rights based on the protection of personal freedom and human dignity. In the end, it is based on a deep-seated belief that those who allege the commission of a crime should prove it themselves and not be able to compel the accused to prove it for them.