Attallah v Director of Public Prosecutions (NSW)

[2002] HCATrans 53

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S142 of 2001

B e t w e e n -

JOSEPH ATTALLAH

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002 AT 9.30 AM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant with my learned friend, MR D. JORDAN.  (instructed by Sachs Gerace Lawyers)

MR A.M. BLACKMORE, SC:   May it please the court, I appear for the respondent with my learned friend, MS N.F. NOMAN.  (instructed by S.E. O’Connor, Solicitor for Pubic Prosecutions (New South Wales))

MR ODGERS:   Your Honours, this application arises out of a prosecution brought by a senior investigator of the Independent Commission ‑ ‑ ‑

GUMMOW J:   Yes, we know all that, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  In the Local Court the magistrate held that it was unfair to admit the evidence obtained on the third occasion that the applicant was summonsed to the Independent Commission and the magistrate referred to three circumstances to support the conclusion.  The first circumstance was that the purpose of the questioning was to elicit admissions, to use them against him in a prosecution.  The second circumstance was that he was not told that this was the purpose of the questioning.  The third was that he had no right to refuse to answer questions.

In the Court of Appeal it was contended that it was open to the magistrate to exercise her undoubted discretion under section 90 of the Evidence Act to hold that it would be unfair to admit the evidence against the applicant.  The Court of Appeal rejected that contention and your Honours have seen the reasons and I will not take you to them.  I will, perhaps.  It is very brief.  It is at application book 106.

KIRBY J:   Can it ever be unfair if Parliament has provided?  We had that case – I think you might even have been in it about ‑ ‑ ‑

MR ODGERS:   Yes, in PJE and Grills, yes, your Honour.

KIRBY J:   Yes, and the court there ‑ ‑ ‑

MR ODGERS:   I think I would concede that if Parliament had said that ICAC can question witnesses for the purpose of obtaining admissions to be used in a prosecution under the ICAC Act.

KIRBY J:   So that is the point of distinction, is it?

MR ODGERS:   That is the point of distinction.

McHUGH J:   That is a difficulty I have with your argument because given the major premise of your argument I am surprised that you do not assert that the questioning itself was unlawful but you seem to accept that the questioning was lawful.

MR ODGERS:   Your Honour, I was to some extent bound by how it been conducted below.  It was not contended before Justice Bergin ‑ ‑ ‑

KIRBY J:   It is just a question of law, is it not?  Is it not a question of law?

MR ODGERS:   It is a question of law whether or not the questioning was unlawful.

KIRBY J:   How could the way it was conducted below affect the argument that you advance in this Court?

MR ODGERS:   It cannot preclude the applicant contending that it was unlawful questioning or improper questioning.  In a sense, the applicant had attempted to avoid that problem by saying, well, even if it was lawful questioning – even if it was lawful questioning, a judge or a magistrate has a discretion to say that it would be unfair to admit the admission against him, and that is the primary argument we advance.

McHUGH J:   But it does seem to me to create enormous difficulties.  Once you concede that the Act authorised this questioning, albeit for collateral purposes, then it seems to me to be questions that the defendant could be compelled to answer.

MR ODGERS:   Can I say this, your Honour.  What was conceded was that the manner in which and the purpose for which the evidence was obtained did not render the questions unlawful.  Since the questions were relevant to the investigation, the applicant did not have the right to refuse to answer the questions.

McHUGH J:   I understand the way you put your case, Mr Odgers, but for my part, at the moment, having read your submissions, I find difficulty about it.  You are not bound by what counsel said in the court below.  Even if counsel concedes a question of law, this Court has held – what is it, Adams v Commissioner of Taxation or somebody – that you are not bound by it.

MR ODGERS:   Yes.  Certainly, your Honour, if the Court takes that view – and I do not argue against it – my subsidiary argument would be that the questioning was unlawful because ‑ ‑ ‑

KIRBY J:   It is not subsidiary.  In point of time it is first, is it not?

MR ODGERS:   I follow that, yes, your Honour.  By subsidiary I mean tactically it is subsidiary.  I would press that as an alternative basis for concluding that it was open to the magistrate to exclude the evidence on the basis that what would be the operation of section 138 of the Evidence Act, which is evidence that is improperly or unlawfully obtained.

GUMMOW J:   Why unlawfully obtained?

MR ODGERS:   The argument would be that the questioning was not for a purpose which was authorised under the Act and that therefore it was either unlawful or improper.  That would be the alternative argument to the argument that even if it was lawful, which is the one we have put initially, that even if it was lawful questioning because it was relevant to an investigation, even if it was lawful because it was, in that sense, immaterial what the purpose was, we have said that you can take into account the purpose when you are making a judgment about fairness.

We have never conceded that Parliament had sanctioned questioning for the purpose of compelling admissions to be used against the applicant in a prosecution.  We have never conceded that.  What we have said is that on one view of the law relating to the powers of ICAC it is irrelevant what the purpose of the questioning is, that if the questions relate to the investigation, then the questioning is lawful and you have to answer.

McHUGH J:   I am not sure about that, but it seems to me that it raises the question as to what is meant by fairness in this context.  What do you mean by fairness?  I can understand fairness in a context of a confession being compelled or forced out of somebody, but if Parliament requires somebody to answer, can the answer that is obtained then said to be unfairly obtained?

MR ODGERS:   We say, yes.  We say that while Parliament has required ‑ ‑ ‑

GUMMOW J:   What are the circumstances referred to in section 90 that you rely on here?

MR ODGERS:   That is a very broad discretion which has ‑ ‑ ‑

GUMMOW J:   Yes, I know, but what are the circumstances here?

MR ODGERS:   The circumstances here are, firstly, the purpose of the questioning was to elicit an admission to be used in a prosecution.

GUMMOW J:   Yes.

MR ODGERS:   That is the first circumstance and that is the critical circumstance.  The second is he was not told that that was the purpose of the questioning.  The third is that he had no right to refuse to answer.  Those are the three factors which had been referred to by the magistrate when she concluded that it would be unfair to admit it.  The essence of our argument which we put in the Court of Appeal and we have put in the written submissions here is that while the purpose does not necessarily render the questioning unlawful and while he is compelled to answer, that a magistrate in determining whether or not the answers can be fairly admitted into evidence against him in a prosecution can take into account that the whole – the purpose of the questioning was not to investigate the facts, not to do what the primary function of ICAC is, to find out the facts, but the purpose was to act as a Star Chamber.

I know I have used that rhetorical flourish in the written submissions, but that is what this is.  It is a situation of an investigatory body with coercive powers compelling a person to answer questions to obtain answers not to serve the function of finding the truth or the facts but rather to elicit evidence and admissions which will then be used in a prosecution conducted by ICAC itself by way of information in the local court.

McHUGH J:   But the answers that are obtained are relevant to the inquiry, are they not?

MR ODGERS:   That is why our primary initial submission was we could not say it was unlawful, but we say that Parliament has not said in its legislation, “By the way, not only is it not unlawful – not only is it lawful but this evidence is admissible.”  It has not said that.  It has said it is not inadmissible by reason simply of the fact that you have compelled the answers.  It has left open the possibility of the court saying, in all the circumstances, including the purpose for which the question was asked, it would be unfair to admit the evidence.

McHUGH J:   Why do you distinguish between what I might call questions going to the primary purpose of the Commission and these ones that go to what you would regard as a sort of collateral or secondary purpose?

MR ODGERS:   No, your Honour, I will be very clear.  We say that there is nothing in the ICAC Act which indicates that it is a purpose of ICAC to obtain evidence for the purposes of conducting a prosecution.

KIRBY J:   For an offence against the ICAC Act.

MR ODGERS:   For an offence against the ICAC Act.

KIRBY J:   Did Justice Fitzgerald deal with this suggested point of distinction, because the Court of Appeal’s basic reason for refusing relief to you on what is, as I understand it, a knock‑out point, was that you could not argue against the unfairness of the statute.  Now, you are putting up a point of distinction.

MR ODGERS:   Yes.

KIRBY J:   And did the Court of Appeal deal with that point of distinction?

MR ODGERS:   Your Honour, no.  The Court of Appeal, if I might say so, with respect to them, sidestepped the point by saying that it had been conceded by us that the purpose of the questioning was sanctioned by Parliament.

KIRBY J:   But, as I understand it, you concede – at least for the purpose of this case you concede that you could not argue against the unfairness of securing the evidence for the purposes for which ICAC has been established, but you make the distinction that you can raise this argument in respect of questioning under the ICAC Act for an offence against the ICAC Act, as distinct from an offence against the purposes for which evidence is secured.

MR ODGERS:   Yes.  It is the two factors.  It is the purpose of obtaining evidence for a prosecution and…..prosecution under the Act.

KIRBY J:   The point is either good or bad.  It is a short point of construction.  It is a knock‑out point for your client.  It is a point which, at least arguably, raises an important issue of defending the right against self‑incrimination, which is an important human right ‑ ‑ ‑

MR ODGERS:   That is our submission.

KIRBY J:   ‑ ‑ ‑ and the Court of Appeal has not dealt with the point.

MR ODGERS:   That is what we say.  I would return to your Honour Justice McHugh, accepting that we are not bound by the way it was run below, if – and we would submit that in the alternative that the purpose for which the questioning was asked did render the answers unlawfully obtained.  We would make that submission as well, but we put it in the alternative, as I have said. 

Your Honours, we have attempted to summarise the argument as clearly as possible in the summary and particularly at page 120 of the application book in paragraph 3.15.  The point we make there is that

Parliament has taken away the right to answer questions on the basis of privilege but the general protection is it is not admissible against you in a prosecution.

GUMMOW J:   Now, your draft notice of appeal does not reflect these matters, does it?

MR ODGERS:   Your Honour, I will just check the draft notice.

GUMMOW J:   At page 110.

MR ODGERS:   Page 110, thank you, your Honour.

KIRBY J:   Are you saying that your draft notices are always so vague it might be included although you were not advancing it until Justice McHugh raised it at the beginning?

MR ODGERS:   I would accept that the proposition that the evidence was unlawfully obtained has not been put there and we would have to amend the notice of appeal to put that contention forward.  Your Honours, I do not know that I can add anything usefully to what I have put.

McHUGH J:   Thank you, Mr Odgers.  Yes, Mr Blackmore.

MR BLACKMORE:   Briefly, your Honours, we contend that the crux of the problem for the applicant here is that there were purposes other than the purpose of obtaining evidence for a perjury prosecution and that is the crux of the problem.

GUMMOW J:   I am sorry, could you say that again?

MR BLACKMORE:   Certainly.  There were purposes in addition to simply obtaining evidence for a perjury prosecution and the problem that arises then is that ‑ ‑ ‑

KIRBY J:   Would you just explain that to me, factually?

MR BLACKMORE:   Yes.  I can do that in two ways, or at two levels.  When the questions are asked at ICAC, questions such as, “Why did you lie?” are going to be relevant to a number of factors.  You cannot always determine when you ask the question what the answer will be.  I mean, maybe the man will say, “Yes, I lied”.  What we are looking at is the purpose of the question, why was it asked, if it is suggested that it was some sort of improper purpose.

McHUGH J:   The witness may be protecting somebody else.

MR BLACKMORE:   There is just a myriad of reasons why he would want to do it in relation to a purpose that this Act covers is corruption.

KIRBY J:   Yes, I can understand that and if then you prosecute him for an offence of corruption, then there is no – or at least there is no arguable excuse.  The statute deals with it.

MR BLACKMORE:   Correct.

KIRBY J:   But here an election has been made by a prosecutor to prosecute for an offence against the ICAC Act and that is what throws up the suggested unfairness.  If this person was questioned, he was bound to answer.  He did not have any right to refuse to answer and he was not warned that his answer might lead to a prosecution for an offence against the ICAC Act.

MR BLACKMORE:   Your Honour, it is not correct, with respect, to say that he was not warned.  The way these proceedings work is they commence on day one with a warning that if you, in effect, lie to the Commission, you may be prosecuted.  That is clearly shown in the proceedings in Justice Bergin’s judgment.  Yes, it is that things will progress through the proceedings where questions are asked but, really, the onus is on the witness himself not to lie.  There is no issue here that what he said was completely contradictory, at least.

If you look at paragraph 11 of Justice Bergin’s judgment and paragraph 13, the things were directly contradictory.  It must be, in those circumstances, that the court or the hearing is entitled to go and ask, “Well, why did you give us that contradictory evidence?”  For the very reason that Justice McHugh has raised, it may, itself, show corrupt conduct, and if ‑ ‑ ‑

KIRBY J:   Yes.  Well, that is all right.  Prosecute him for corrupt conduct.

MR BLACKMORE:   With respect, but why not also prosecute him for offences under the Act when he has directly committed them?  What teeth would the Act have if witnesses could simply come to the court, lie whenever they chose to and not be prosecuted?

KIRBY J:   Because it is a very fundamental rule of the common law, which can be overridden by a statute, that we do not force people to incriminate themselves.  It is a very uncomfortable requirement of our system, but it normally requires you to prove cases from your evidence, from the mouth of the accused.

MR BLACKMORE:   It is not that I do not appreciate the thrust of what your Honour says but the legislation is – I cannot really put it any more clearly – the legislation is in place to deal with this sort of case.  This witness lied to the proceedings.  He was asked about why he lied, for reasons which were – no doubt is partly connected to charging him but also partly connected with the purposes of the Commission, including the purposes of having to report to the government about their own reports, for example.  I mean, there are just a myriad of reasons why you would ask these questions.

In those circumstances it cannot be that there was any impropriety involved.  Section 138 – and in our submission the concession was rightly made – cannot have any application, and if it cannot have any application then, in our submission, the High Court’s decision in Grills is correct.  You cannot simply exclude evidence on the basis that it is unfair if Parliament allows it to be carried out in this way and unless there is some other ‑ ‑ ‑

KIRBY J:   You raise the point, do you not, concerning the entitlement of the applicant to prosecute this point at a later stage if it goes back?

MR BLACKMORE:   In a different way.  I mean, we say that he cannot solely rely upon this question of unfairness based upon an assertion that the legislation is unfair.  If you read the magistrate’s ruling, in our submission, that is, in effect, what she did say.

McHUGH J:   I do not think it is a ground for resisting special leave that he may have another point.  This is a knock‑out point from his point of view.

MR BLACKMORE:   It is.  It is a knock‑out point.  If he could get up, it would be a knock‑out point.  In our submission, it is just a ‑ ‑ ‑

McHUGH J:   If it is a special leave point, then there are no reasons why ‑ ‑ ‑

MR BLACKMORE:   Yes, that is right.  It is not a discretionary issue, really.

McHUGH J:   No.

MR BLACKMORE:   The question is whether or not it is a construction that is open on the legislation and, in our submission, it is so clearly not that it is not a matter for special leave.

MR ODGERS:   Just in relation to the first point, it was the other purposes for the questioning on the third occasion.  The sequence was very simple.  The applicant is in the box.  The counsel for ICAC says, “Well, you said X on the first occasion.”  He concedes he said it.  Then it is put to him, “That wasn’t true, was it?”  He says, “That is correct.”  “And you knew it wasn’t true at the time you gave the evidence, didn’t you?”  “That is correct.”  Then he moves on to the next topic.  I mean, it is inescapable that what was going on there was eliciting evidence of a confession which was then to be used in a prosecution.  That was the purpose and it was found to be the purpose below.

KIRBY J:   Could that evidence, that concession, that admission, be available for use against him in prosecution for corruption?

MR ODGERS:   No, your Honour.

KIRBY J:   Its only relevance is to an offence against the ICAC Act.

MR ODGERS:   Yes, absolutely.

KIRBY J:   The short question is whether there is an ambiguity in the statute which should be construed, conformably to the authority of this Court, defensive of the right against self‑incrimination.

GUMMOW J:   Now, where do you say is the text of ambiguity?  Not at the level of generality but at the level of specificity.

MR ODGERS:   Yes, I understand that, your Honour, and I am going to answer it in this way.  There are two aspects of this.  The first question is the significance of section 37.  Can I just take your Honours to that, in particular subsection (4) which says:

Nothing in this section makes inadmissible:

(a)  any answer, document or other thing in proceedings for an offence against this Act ‑ ‑ ‑

GUMMOW J:   That is a subsidiary proposition.  You have to read the section as a whole, have you not, to see what it is doing?

MR ODGERS:   Yes, I am sorry, your Honour.  I was trying to speed it up.  Subsection (1) says you have to answer questions.  Subsection (2) says you cannot refuse on the basis of the privilege against self‑incrimination.  Subsection (3) says the answers are not admissible, subject to subsection (4).  Subsection (4) says what has gone before does not make it inadmissible where it is an answer for an offence against the Act.  My point is very simple.  It does not say it is admissible.  It leaves it open, the question of whether or not there may be circumstances which justify discretionary exclusion.

McHUGH J:   Yes, but when you read (1) and (4) together, (1) says:

A witness . . . is not entitled to refuse . . . to answer any question –

and (4) says:

Nothing in this section –

including subsection (1) –

makes inadmissible:

(a)  any answer –

So, the fact that he was required to answer does not make it inadmissible.

MR ODGERS:   Precisely.  The fact that he is held to answer, that fact does not make it inadmissible.  It does not say that other facts, for example, the purpose for which the question is asked, might bear on the question of whether it would be unfair to admit it against him.  This is what we are saying.  The second point in response to your Honour Justice Gummow is, when one looks at the purposes listed in respect of functions of the ICAC Act, the principal functions are referred to in section 13 and there is nothing that bears on this issue.  The only function which ‑ ‑ ‑

KIRBY J:   But could not one say that the very effective operation of the Commission itself is, as it were, the carrying out or carrying into effect of the fight against corruption?

MR ODGERS:   In oral argument in the Court of Appeal it was suggested ‑ ‑ ‑

KIRBY J:   Why is not that a good point, that the whole point of setting up the Commission is to fight corruption, that if people can just come along and perjure themselves before the Commission that itself is undermining the statutory purpose of fighting corruption through this Commission?

MR ODGERS:   Because, your Honour, it would then have to confront head‑on this issue of whether or not it is appropriate to override the privilege against self‑incrimination in ‑ ‑ ‑

KIRBY J:   But that is what I am addressing myself to.

MR ODGERS:   I understand that but ‑ ‑ ‑

KIRBY J:   Why is that not ‑ ‑ ‑

MR ODGERS:   The very fact that it is not stated to be a function ‑ ‑ ‑

KIRBY J:   It does not have to be stated.  Why else set up the Commission?

MR ODGERS:   The Commission can protect itself by referring the matter to prosecuting authorities who can then obtain evidence for the purposes of the prosecution.

GUMMOW J:   No. No.

MR ODGERS:   But the question is, “Can ICAC compel people to convict themselves, out of their own mouths, of an offence against ICAC?”.  That is the question.  In my submission, there is nothing in the Act ‑ ‑ ‑

GUMMOW J:   But section 37 seems to suggest the answer is, “Yes”.

KIRBY J:   Because it says “an offence against” the Act.  Why is this not an offence against the Act to tell lies to the Commission?

MR ODGERS:   Your Honours, if ICAC is investigating corrupt conduct, if that is what it is doing and that is what its primary function is, to investigate corrupt conduct, if it is doing that and it compels an answer, then it can be used against the person who is being questioned and it may be used in terms of a prosecution for perjury, because if the answer is perjured, it can be used against him.  But it does not say that – and the Act does not anywhere say that, “You can go beyond investigating corrupt conduct.  You can investigate alleged perjury of ICAC and not only can you investigate it, you can compel all the evidence and then use it in a prosecution.”

GUMMOW J:   A prosecution under section 87, is it?

MR ODGERS:   Yes, your Honour, but there is nothing in the Act which says that or implies it – nothing.

KIRBY J:   It is a catch‑22.  If the purpose of the Commission is to fight corruption by its inquiries, you undermine the fight against corruption in the way that Parliament has authorised by allowing people to perjure themselves before the Commission.  It is all part of a package.

MR ODGERS:   Your Honour, it is not allowing people to perjure themselves.  If they have perjured themselves, then the evidence – the fact that they have perjured themselves – the evidence of the answers they have given can be used against them in a prosecution.  It is the next step.  If the

proposition your Honour is putting to me is correct, it is saying that ICAC can not only hand over evidence of perjury but it can actually go out and investigate alleged perjury, compel people to provide evidence of perjury and use their admissions against them in a prosecution conducted by ICAC.

McHUGH J:   I think your time is up, Mr Odgers.

MR ODGERS:   Yes, your Honour.  Thank you.

McHUGH J:   The Court will adjourn briefly to consider the course it will take in this matter.

AT 9.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.00 AM:

McHUGH J:   Having regard to the provisions of section 37(4) of the Independent Commission Against Corruption Act 1988 and the structure and purpose of the Act, the Court is of the view the application has insufficient prospects of success in an appeal to warrant the grant of special leave to appeal. Accordingly, the application is dismissed.

Call the next matter.

AT 10.00 AM THE MATTER WAS CONCLUDED