CC v New South Wales Crime Commission

[2015] NSWSC 1866

Supreme Court

New South Wales

Medium Neutral Citation:	CC v New South Wales Crime Commission [2015] NSWSC 1866
Hearing dates:	09 November 2015
Date of orders:	13 November 2015
Decision date:	08 December 2015
Jurisdiction:	Common Law
Before:	Adams J
Decision:	Reasons
Catchwords:	CIVIL – review – plaintiff ordered by New South Wales Crime Commission to answer questions at hearing – plaintiff refused on basis of privilege against self-incrimination constituting a “reasonable excuse” under s 25 of the Crime Commission Act 2012 (NSW) – whether witness may decline to answer questions merely because answers can be provided to investigating police
Legislation Cited:	Crime Commission Act 2012 (NSW), ss 25, 33, 34, 39, 39A, 45, 45(2), 45A, 45A(2) Criminal Assets Recovery Act 1990 (NSW), ss 39(2), 39(6) Administrative Appeals Tribunal Act 1975 (Cth), s 43
Cases Cited:	Ganin v NSW Crime Commission (1993) 32 NSWLR 423; 70 A Crim R 417 Lee v R [2014] HCA 20; (2014) 253 CLR 455 McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 R v Seller; R v McCarthy [2015] NSWCCA 76 SD v New South Wales Crime Commission [2012] NSWSC 1642 SD v New South Wales Crime Commission [2013] NSWCA 48 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116 X7 v Australian Crime Commission (2013) 248 CLR 92 Z v N (No 2) [2005] NSWCA 316 Z v New South Wales Crime Commission (No 2) [2005] NSWSC 1388 Z v New South Wales Crime Commission (No 2) [2005] NSWSC 1388
Category:	Principal judgment
Parties:	CC (Plaintiff) New South Wales Crime Commission (Defendant)
Representation:	Counsel: M Robinson SC/ A Djemal (Plaintiff) I Temby QC (Defendant)   Solicitors: Zahr Partners (Plaintiff) New South Wales Crime Commission (Defendant)
File Number(s):	2015/295724
Publication restriction:	The Court prohibits the publication of the name of the plaintiff or any other person referred to in the course of the hearing before the Commission and of any information tending to reveal the identity of the plaintiff or such other person. It is directed, that the plaintiff be referred to as CC.

Judgment

Introduction

1. The plaintiff was summoned by the New South Wales Crime Commission to give evidence about a shooting offence. He appeared before the Commission but a number of adjournments ensued and the summons eventually became spent. A second summons was issued but, when he was asked questions at the hearing, he declined to answer them, claiming in substance that he was not obliged to answer them since he was a suspect and his answers would or, at least, might well, be communicated to police who were investigating the offence in which it was suspected he was involved. The Assistant Commissioner ordered him to answer the questions. The plaintiff’s counsel indicated that he wished to seek a review of the Commissioner’s order in this Court pursuant to s 33 of the Crime Commission Act 2012 (NSW) (all references in this judgment to statutory provisions are to this Act). The Assistant Commissioner, in anticipation of the present proceedings, asked a series of questions which, on his refusing to do so, formally ordered the plaintiff to answer. On 9 October 2015 a summons was filed in this Court seeking a review under s 33(3) of these orders, together with ancillary relief. This matter came on for hearing on 9 November 2015. The plaintiff (and the defendant by way of response) filed further submissions by leave. On 13 November 2015, I ordered that the summons be dismissed and affirmed the decision of the Commission, reserving publication of my reasons. These are those reasons.

Crime Commission Act 2012 (NSW)

25 Failure of witnesses to attend and answer questions etc

(1) …

(2) A person appearing as a witness at a hearing before the Commission must not, without reasonable excuse or except as provided by section 39 or 40:

(a) …

(b) refuse or fail to answer a question that the person is required to answer by the executive officer presiding at the hearing, or

(c) …

33 Applications to Supreme Court for review of Commission’s decisions concerning entitlement to refuse to take oath or affirmation, produce documents or things or answer questions

(1) This section applies to a person who claims to be entitled to refuse:

(a) …

(b) to answer a question put to the person, or to produce a document or thing that the person was required to produce, at a hearing before the Commission under section 30 (4), or

(c) … to answer a question … at a hearing referred to in section 24.

(2) The Commission must decide as soon as practicable whether in its opinion the claim of a person to whom this section applies is justified and notify the person of its decision.

(3) If the person is dissatisfied with the Commission’s decision, the person may apply to the Supreme Court for review of the decision.

(4) …

(5) …

(6) …

(7) If a decision of the Commission under this section relates to 2 or more questions … the decision must, to the extent to which it relates to a particular question be taken, for the purposes of this Act, to constitute a separate decision relating to that question … only.

34 Decisions on review

(1) Following its review of a decision under section 33, the Supreme Court may make an order:

(a) affirming the decision, or

(b) setting aside the decision.

(2) …

(3) …

39 Privilege concerning answers and documents

(1) A witness summoned to attend or appearing before the Commission at a hearing is not (except as provided by section 40) excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

(2) An answer made, or document or thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings (other than a proceeding for the falsity of evidence given by the witness) or in any disciplinary proceedings.

(3) …

(4) …

(5) …

(6) The executive officer presiding at the hearing may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing.

39A Derivative evidence

(1) Any further information, evidence, document or thing (the derivative evidence) obtained as a result of:

(a) the questioning under section 24 [power to summon witnesses and take evidence] of a witness at a hearing before the Commission, or

(b) …

… is not inadmissible in any civil or criminal proceeding or in any disciplinary proceeding.

(2) Without limiting subsection (1), the derivative evidence is not inadmissible on the ground:

(a) that the original evidence had to be given or produced, or

(b) that the original evidence might incriminate the witness, or

(c) that the witness was questioned … in relation to the subject matter of the offence for which the witness was charged before the charge was laid, or

(d) …

(3) …

(4) …

(5) …

45 Publication or disclosure of evidence

(1) The Commission may direct that:

(a) any evidence given before it, or

(b) …

(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d) the fact that any person has given or may be about to give evidence at a hearing,

must not be published, or must not be published except in such manner, and to such persons, as the Commission specifies.

(2) The Commission must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(3) A person must not make a publication in contravention of a direction given under this section.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(4) If:

(a) a person has been charged with an offence before a court of the State, and

(b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor,

the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court.

(5) If:

(a) the Commission makes evidence available to a court in accordance with subsection (4), and

(b) the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor.

(6) This section has effect subject to section 45A.

(7) …

45A Disclosure of evidence of accused about offence for which charged

(1) This section applies where:

(a) evidence involving the subject matter of an offence (the offence concerned) is given before the Commission, and

(b) the evidence was provided by a person (the witness) who is at that time the subject of a current charge for the offence concerned, and

(c) the witness objected to providing the evidence.

(2) The Commission must not allow any of the evidence or a record of any of the evidence to be disclosed to a member of an investigative agency or a prosecutor if the member of the agency or the prosecutor is involved in the investigation or prosecution of the offence concerned.

(3) …

(4) Despite subsection (2), the Commission may direct any of the evidence or a record of any of the evidence to be disclosed to the Director of Public Prosecutions for the purposes of:

(a) a request or advice to the Attorney General in respect of granting the witness indemnity from prosecution in relation to the matter the subject of the current charge, or

(b) advice to the Attorney General on a proposed undertaking by the Attorney General under section 33 of the Criminal Procedure Act 1986 in relation to the evidence.

(5) The Commission may make orders placing restrictions or further restrictions on the further disclosure of any evidence or record of evidence allowed to be disclosed under subsection (3) or (4).

(6) A person must not make a disclosure in contravention of an order made under subsection (5).

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(7) A reference in this section to the disclosure of evidence or a record of evidence includes a reference to disclosure of any information directly contained in or implied from that evidence or record, except where the information could be obtained elsewhere.

The hearing before the Assistant Commissioner

2. At the outset, before any questions were asked, counsel for the plaintiff asked whether the transcript of the hearing might be made available to police officers who were investigating the offence about which it was intended to examine him. The Assistant Commissioner after some discussion and reference to authorities and sections of the Act summarised the position as follows –

“So there is no reason … [the plaintiff] can’t be examined. There is no reason why, if the Commission chooses to, it cannot disseminate the information [to the investigating police].”

The Assistant Commissioner said that the answers the plaintiff gave to the questions would be subject to a non-publication order but that order might be varied. He declined to say whether investigating police would or would not have access to the material; it was a matter which would be decided at a later stage. The clear implication however (as was accepted for the purpose of these proceedings) was that it was envisaged that the answers of the witness could well be made available to those officers. The Assistant Commissioner then made the following order –

“I direct that any evidence given before the Commission or the contents of any document or a description of any thing produced during the hearing or any information that might enable the witness to be identified as a person who has given evidence to the Commission or might enable the witness to be located must not be published except to members of staff of the Commission and to such persons, and in such manner, as may later be specified by the Commission.”

3. The plaintiff was informed that those directions applied to him, although he was able to communicate freely with his lawyers. The Assistant Commissioner then, pursuant to s 39(6) of the Act, declared that all answers given by the plaintiff would be regarded as having been given on objection and there was therefore no need to object to each of them. The effect of this was to trigger s 39(2), so that the answer could not be used against the plaintiff in any civil, criminal or disciplinary proceedings, other of course than a prosecution for giving false evidence if this occurred. Under s 39A, evidence derived from anything disclosed by the plaintiff is not inadmissible on the ground that it was discovered as a result of answers to questions to which he had objected. After some further exchange between the Assistant Commissioner and the plaintiff’s solicitor, Mr O’Connor, for the Commissioner, commenced to question the plaintiff. After providing his date of birth and residential address, he was asked whether he knew a particular person. He declined to answer, claiming to “exercise my right to silence”. The Assistant Commissioner required him to answer the question. After a brief discussion with his counsel, the plaintiff indicated that he wished to challenge the requirement by way of review in this Court. Mr O’Connor then continued with his questioning at the direction of the Assistant Commissioner and asked whether he knew another person. The plaintiff again refused to answer, was again required to answer and did not do so. Two other questions relating to two other individuals were then asked, with the same result. After further discussion, the hearing was adjourned, essentially to permit the present review to be sought.

Initial issues

4. The summons claiming the review sought, in addition, the following –

“[2]. An order in the nature of prohibition or, alternatively, an injunction preventing the defendant or any of its officers, servants or agents from acting on or taking any further step in reliance on the defendant’s summons dated 29 July 2015.

[3]. If necessary, an interim order or stay in the nature of prohibition or an interlocutory injunction preventing the defendant or any of its officers, servants or agents from acting on or taking any further step in reliance on the defendant’s summons dated 29 July 2015 until the final determination of these proceedings or until further order.”

5. The summons to the plaintiff and the notice by the Management Committee referring to the Commission for investigation “a matter relating to relevant criminal activity as defined in s 3” were annexed to the affidavit of the plaintiff’s solicitor relied on in the proceedings. The notice states that “the Commissioner has information indicating that several known persons may have engaged in, may be engaging in and may be about to engage in a range of offences including murder and other violent offences, robbery, larceny, and drug trafficking and have used equipment that has been used in other offences”. The purpose of the investigation was “to obtain evidence for use in criminal prosecutions… and proceedings under the Criminal Assets Recovery Act 1990 (NSW) against any persons found by the investigation to have engaged in criminal activity.”

6. The grounds of the review set out briefly the facts of the Commission’s summons, the plaintiff’s examination by the Assistant Commissioner and the disclosure by the Assistant Commissioner, in effect, that the evidence could be available to police forming part of the defendant’s “team”. The grounds raised no issue as to the validity of the summons or the nature and appropriateness of the questions ordered to be answered.

7. When the matter came on for hearing Mr Robinson SC for the plaintiff, stated that he sought an urgent interim injunction “in order to preserve the status quo to permit… [the plaintiff] to exercise his statutory right of review in the Supreme Court” pointing out, as the matter then stood, the defendant planned to further examine the plaintiff on the following day, when it was anticipated that the plaintiff would again be ordered to answer questions. The plaintiff had sought an order for discovery before the Registrar a week previously but no order had been made and, it was submitted, the documents were required for the purposes of the review sought in the summons and discovery should be ordered. The documents sought, listed in the written submissions essentially were those which would identify the police involved in the investigation, formed the material available to the Assistant Commissioner for the purpose of issuing the summons addressed to the plaintiff and for questioning the plaintiff, concerned the issue of media releases about the offence in respect of which the plaintiff was to be questioned, and the material available to the Management Committee when it made the reference (under s 51) pursuant to which the plaintiff was summoned. Objection was taken by Mr Temby QC to the adjournment sought to enable this discovery to take place, on the ground that the documents sought could not have any relevance to the issues raised by the review sought by the plaintiff. I accepted this submission and declined to order discovery.

8. Mr Temby submitted also, in substance, that it was unnecessary to consider whether an interim injunction should be granted, that the substantive application could and should be argued without delay and, in the event that judgment were reserved, an interim order would not be opposed preventing further questioning of the plaintiff, pending judgment. In response, Mr Robinson said that the plaintiff was “not ready to deal with the whole of the matter today”, submitting that he needed to undertake research into the interpretation of s 33(3) as its equivalent provision had been construed under the legislation which was superseded by the present Act. He foreshadowed an argument that the final hearing would be in the character of a de novo review in which, amongst other things, the basis for the Assistant Commissioner’s questions would need to be explored. He submitted that the Court should stand in the shoes of the Commission, which should put on evidence as to why it made the decisions under review and what documents it had before it, for example, when it issued the summons. Accordingly, he submitted, these matters made the case somewhat more complicated than it at first appeared and it was not ready to run. I pointed out to Mr Robinson that the grounds of the review sought, as specified in the summons, did not suggest an attack on the Commissioner’s summons or even the examination itself. Rather, the attack mounted related to whether the orders directed to the plaintiff to answer the Assistant Commissioner’s questions were legally justified in light of the fact that the plaintiff was a suspect in the matter under investigation and the police might be informed of his evidence. Mr Robinson then expanded the scope of the enquiry which he wished to make and which he submitted the Court should undertake, to include the documents seen by the Management Committee. When I pointed out to him that this appeared to be an attack upon the Commission’s summons itself, though its legality was nowhere questioned in the plaintiff’s summons, Mr Robinson replied, “Not yet, your Honour, but your Honour still needs to know – your Honour can't stand in the shoes of the Commission without having … the brief of the Commission in questioning my client”. Mr Robinson submitted that the review provided by the Act and sought in the summons could not be conducted unless the Court knew what the Assistant Commissioner knew. Although Mr Robinson submitted that the documents are relevant to and would “plainly assist” the plaintiff’s application for the review and were “central to the issues” that he seeks to agitate, at no point was he able to specify the particular issue in the summons to which they might go. Submissions such as “the Court will have one hand tied behind its back on the hearing of the review application” do not answer the question of relevance. The crucial question, as Mr Temby submitted, was the extent of the Commissioner’s authority to order the plaintiff to answer the questions he was asked, which depended on his legislative authority and could not be informed by the material available to him that prompted the questions. Mr Temby said that the Commission was prepared to accept, for the purposes of the proceedings, that the plaintiff is a suspect in a serious crime, that there is a prospect that he might be charged either with or in connection with it on the basis of material which comes to light as the result of his admissions, though those admissions cannot themselves be used against him and that the purpose of the examination of the plaintiff was to obtain information relevant to the investigation and likely to be communicated in due course to investigating police.

5. Mr Temby submitted that all that was necessary for the purposes of disposing of the summons was the transcript of the hearing before the Assistant Commissioner in which the questions were asked, the plaintiff refused to answer and the Assistant Commissioner ordered him to do so. In reply, Mr Robinson submitted that the review is de novo and accordingly, it was necessary for the Court to be appraised of the relevance of the questions, the reasons that they were asked and where the line of enquiry was going. He said that the plaintiff did not consent to the matter proceeding as a final hearing. He pointed out that the plaintiff had sent the defendant a notice to admit facts to which there has yet to be no response and the time limit for the admissions did not expire for some days. I was not informed what facts were sought to be admitted but I infer they related to the wider exploration which Mr Robinson contended was necessary.

6. As mentioned, I declined to order discovery. That left the question of whether the matter should be adjourned to enable Mr Robinson to prepare for the argument of the application for review, in particular, as to the nature of the proceeding. I gave leave for the parties (in particular, the plaintiff) to file further submissions if they thought it necessary to do so. Further submissions were filed. I deal with them in due course.

The nature of the review

11. Mr Robinson pointed to the power in s 35 of the Court to affirm or set aside the decision of the Commissioner or make further orders in relation to orders, documents or things and, as I understand him, in order to affirm or set aside the decision under review, the court must examine whether it would have made the decision itself and to do that it required the material upon which the Assistant Commissioner may be thought to have acted in both asking the question and ordering that it be answered. Somewhat enthusiastically, Mr Robinson submitted that the effect of s 33 “must be that this Court operates as a safety valve so that the Crime Commission does not run rampant as it were”. He pointed to the fact that under s 74(4) the staff of the Commission might include police officers to perform services for the Commission and accordingly, by virtue of s 74(1) are part of the staff of the Commission. (Since, at all events, the Assistant Commissioner had disclosed the likelihood that information provided by the plaintiff would be passed on to investigating police officers, these provisions do not seem to matter.)

12. Mr Robinson also relied on Ganin v NSW Crime Commission (1993) 32 NSWLR 423; 70 A Crim R 417 where the Court of Appeal (Kirby P, Meagher JA and O’Keefe AJA agreeing) held that the phrase “reasonable excuse” should not be narrowly construed and limited to the privilege against self-incrimination. Kirby P, considering the test of “reasonable excuse” found (at 438-9) that it had not been properly interpreted below. The reasonable excuses said to have been available were different to those which had been identified both before the Commission and at first instance. However, Kirby P rejected the submission that reliance could not now be placed on those matters. The Commission submitted that, if the Court came to this conclusion, it should not substitute its own opinion for that of the decision maker as the proceedings came to the court by way of review and not a merits appeal. Kirby P (at 439) acceded to the submission that the matter should go back to the Commission, but did not (at least expressly) decide the nature of the proceedings. The belated excuses were not based on additional evidence, but simply amounted to different characterisations of the available excuses. Permitting them to be raised did not, therefore, shed any light on whether the review was on the merits: it had already been found that the Commission had erred.

13. In Z v New South Wales Crime Commission (No 2) [2005] NSWSC 1388 at [34] – [36], Johnson J observed that s 19(4) of the superseded Act enabled the Court “in its discretion” to affirm or set aside the decision of the Commission and concluded that this “tends to support the view that the function being carried out by the Court is not a narrow one”. His Honour did not, however, need to explore the question, since the only evidence was the material that was before the Commission. It should be noted that the present s 34 omits the phrase thought by Johnson J to be significant. In the Court of Appeal (Z v N (No 2) [2005] NSWCA 316), Ganin was referred to as having discussed the nature of the review but, since no further evidence was sought to be relied than that which was before the Commission, it was unnecessary to determine the point.

14. In the further submissions made on behalf of the plaintiff reliance was placed on Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 as authority for the proposition that the Court should stand in the shoes of the Assistant Commissioner and assess his decision afresh without the need to find error. It is not necessary to analyse the reasoning of their Honours in this case in detail. The crucial question was whether the Administrative Appeals Tribunal should determine the rights of the parties to an appeal by reference only to the materials that existed at the time of the decision. Section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) provided, so far as was relevant –

"(1)   For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)   affirming the decision under review;

(b)   varying the decision under review; or

(c)   setting aside the decision under review and:

(i)   making a decision in substitution for the decision so set aside; or

(ii)   remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

...

(6)   A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect."

The Court (Kirby, Hayne, Heydon, Crennan and Kiefel JJ agreeing on this point) concluded that the legislation showed that the Tribunal was required to make a decision on the merits and, accordingly, have regard to all the material that was available to it.

15. That the nature of the review must be determined by reference to the provisions of the Act itself is emphasised by McColl JA (Mason P and Giles JA agreeing) in Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116 at [62]; McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609, to which Mr Robinson also referred, takes the matter no further.

16. In SD v New South Wales Crime Commission [2012] NSWSC 1642 Adamson J, considering the nature of the review jurisdiction conferred on the Court by s 19 of the superseded Act, observed (at [28]), “the fact that this Court is empowered only to make either an order affirming, or setting aside, the decision, provides a powerful indication against merits review”. However, the precise ambit of jurisdiction did not arise since the question whether, as the plaintiff contended, he had a reasonable excuse for refusing to answer the impugned questions on the basis that the requirement to answer them infringed his privilege against self-incrimination was a matter of law and, if legal error be found, the decision requiring him to answer the questions should be set aside at all events. The application under the former Act allowed a person to apply “for an order of review” whilst the present provision permits an application “for review of the decision”. This distinction was not the subject of submissions and I do not mention it further.

17. I should interpolate that, here, the plaintiff did not seek to put on any evidence relevant to the question of reasonable excuse or as otherwise justifying his refusal to answer questions. Nor was it suggested that the questions were irrelevant to the reference. It was not suggested that the additional evidence that might have been forthcoming from the fishing expedition that the plaintiff sought to mount by way of discovery would or might disclose something that might amount to a reasonable excuse. It was sought on the basis that the Court should be placed in the position of the Assistant Commissioner and consider whether it would ask the questions or, if it would, require the plaintiff to answer. Since there is no basis for dealing with the plaintiff’s obligation to answer questions except on the material before me, nothing in this respect requires the Court to determine the character of the review under s 33.

18. Section 25 of the Act, in effect, requires witnesses to answer the questions unless they have a reasonable excuse for not doing so. The reasonable excuse put forward by the plaintiff was that the answer might be provided to investigating police officers or even, perhaps, to the Director of Public Prosecutions. As I have mentioned, for the purposes of this case it is to be taken that the Assistant Commissioner indeed intended to provide the plaintiff’s evidence, at least, to the investigating police. This is scarcely surprising, since the very point of the Commission’s examination is to investigate the relevant criminal activity referred to it by the Management Committee as one of its “principal functions” in accordance with s 10(1)(a) of the Act. As stated by Basten JA (with whom McFarlan JA agreed) in SD v New South Wales Crime Commission [2013] NSWCA 48 –

“[26] The Crime Commission Act gives no protection against an answer being used for the purposes of an on-going criminal investigation. Indeed, to impose such a constraint would be to limit the functions of the Commission in a manner which finds no source in ss 6, 7 or 8 of the Crime Commission Act. True it is that an important function of the Commission is to assemble evidence ‘that would be admissible in the prosecution of a person for a relevant offence’ - s 6(1)(b) and (2) - which, given the use immunity for answers to questions, can never include admissions made by a person who is charged with a relevant offence. But that is by no means the sole function of the Commission: rather, the primary function of the Commission is to ‘investigate matters relating to a relevant criminal activity’ referred to it by its Management Committee for investigation - s 6(1)(a) - and to ‘disseminate intelligence and information to such persons or bodies as the Commission thinks appropriate’: s 7(a).

…

[28] The investigation of criminal activity, if publicly revealed, may have the capacity to prejudice a person's safety or reputation, or to prejudice the fairness of a trial consequent upon charges being laid. The Commission is given powers and, in circumstances identified in s 13(9) a duty, to take steps to avoid publication of information where that might prejudice a person's safety or reputation or fair trial.

[29] The reference to prejudice to a fair trial is of some importance. In relation to known criminal activity, the successful end to a criminal investigation is likely to be the laying of charges with at least a possibility of a trial. A primary purpose of the Crime Commission Act is to enhance the likelihood of the laying of charges and the prosecution of such charges at trial. The primary purpose of the Commission is thus furthered by an appropriate non-publication order, but impaired by a restraint on disclosure to the police or prosecuting authorities. Thus, read in its statutory context, the purpose of s 13(9) is not to limit or prevent disclosure or dissemination of material for the purposes of investigation or prosecution, but to prevent any wider publication which would jeopardise those functions.”

The same considerations apply to the current Act.

19. In respectful agreement with Adamson J at first instance in SD, I think that the review for which s 33 provides is not a merits review. But, at all events (as in SD), the question whether the plaintiff was entitled, for the reasons he gave, to decline to answer the questions or, in other words, amounted to a reasonable excuse, is one of law and does not involve weighing any facts. It follows that it is not appropriate for the Court, as Mr Robinson contended, to place itself in the “shoes of the Commission” and consider for itself whether requiring the plaintiff to answer the questions was a proper exercise of the relevant legislative powers, or whether the refusal to indicate what orders would or would not be made, let alone whether the questions themselves should or should not be asked.

The obligation to answer questions

20. Mr Robinson, following some preliminary submissions as to the status of the Commission and the role of the Management Committee under the Act, took me to s 45(2), which requires the Commission to make orders relating to publication where, “the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence”. He pointed out that the plaintiff was in the position of a person who may be charged with an offence and, accordingly, appropriate non-publication orders were to be made. Mr Robinson’s essential contention is that, as the orders might be amended (as foreshadowed by the Assistant Commissioner), the plaintiff’s answers or any other information that he might be supply to the Commissioner could be published to investigating police officers. He said that his client’s “concern is that there is insufficient protection for him as a suspect”.

21. Mr Robinson relied on the principle of legality, namely that it is presumed that Parliament will not change a fundamental aspect of the Common Law without explicitly and unmistakably expressing its intention to do so, relying on X7 v Australian Crime Commission (2013) 248 CLR 92, Lee v R [2014] HCA 20; (2014) 253 CLR 455, R v Seller; R v McCarthy [2015] NSWCCA 76 where, in substance, it was held, as it was put in Lee (at [31] – [32]), that to compel a person charged with a criminal offence to answer questions about matters relevant to the offence “would be to depart from the accusatorial nature of the criminal justice system in a fundamental respect … [so that clear] words or those of necessary intendment were therefore necessary” to authorise such a power. The mere exclusion of the accused’s statements from being admitted by provisions such as s 39 is not sufficient, as the Court said in Lee –

“[34] The purpose of s 13(9) [now s 39(2)] of the NSWCC Act was to protect the fair trial of a person who might be charged with offences. It supported the maintenance of the system of criminal justice referred to in X7 and the trial for which that system provides, in which the prosecution has a defined role and the accused does not. The protective purpose of s 13(9) would usually require that the Commission quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the Commission to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not met in the present case, with the consequence that the appellants' trial differed in a fundamental respect from that which our criminal justice system seeks to provide.”

22. In Seller & McCarthy the prosecution proposed to call evidence from an accountant, Mr Tang, who had been present on some occasions during examinations of the plaintiffs by the Australian Crime Commission, both of whom had claimed privilege against self-incrimination. The primary judge prohibited Mr Tang from giving evidence. The critical question was whether the giving of evidence by Mr Tang would risk upsetting the balance between the power of the State and the accused by using compulsorily acquired material. If so, the primary judge was correct in prohibiting Mr Tang from giving evidence. Mr Tang was to give evidence, in substance, of an accounting analysis of the financial consequences of transactions outlined in documents considered by him. The Chief Justice (with whom Fullerton and Bellew JJ agreed) said –

“[115]   Importantly, Mr Tang’s statements indicate that his evidence will be the vehicle through which a good deal of the prosecution’s documentary case will be led and explained. If it was open to the primary judge to conclude that he was assisted in this task by having the examination transcripts and the compulsorily acquired material in his possession, then it was in my opinion open to the judge to conclude that his giving evidence would alter the accusatorial process in the sense described in X7 and Lee (2014).”

23. Since Mr Tang acknowledged that Mr McCarthy’s evidence about some of the documents together with material produced by him and Mr Seller had helped to ascertain how the impugned schemes operated, it was fair to infer, as the primary judge did, that his understanding of the schemes at issue was informed to a significant degree by his access to this material, although the evidence he proposed to give did not depend on the transcripts or the compulsory acquired material (at [116] – [119]). Although it was not certain, it was possible that the cross-examination of Mr Tang on behalf of the respondents would be limited or hindered by the evidence they gave at the compulsory examinations. Accordingly, “the accusatorial process inherent in a criminal trial” would be altered in a fundamental sense, so that the Crown appeal should be dismissed.

24. It is submitted that the proposed examination by the Commission complained of here would “alter the accusatorial process inherent in a criminal trial in the fundamental sense”. However, neither Lee nor Seller & McCarthy dealt with the issue whether the Australian Crime Commission (under the legislation which, for present purposes, is the same as the Act) was empowered to ask the questions and compulsorily require production of the relevant documents nor whether dissemination of the documents to investigating officers was permitted. The issues there considered concerned the proposed use, either directly or circuitously, of that material by the prosecution of the accused at his trial. In substance, the contention advanced by Mr Robinson is that a person in the plaintiff’s position, though not charged, could not be required to answer questions unless orders were in place to ensure that the prosecution, should it eventuate, would not have available, whether through the investigating police or otherwise, the evidence he or she gave since that would constitute “a departure in a fundamental respect” from the character of a criminal trial. It followed that, although the privilege against self-incrimination was effectively removed, since the plaintiff was in substance who was being question with a view to his ultimate prosecution (if the admissible evidence sufficed), the fact that his evidence might, and probably would, be disclosed to investigating police and, perhaps, to the Director of Public Prosecutions, meant that the ultimate trial would not be conducted in accordance with the fundamental requirements of criminal justice.

25. The plaintiff relied on the following passage from Z v New South Wales Crime Commission (No 2) [2005] NSWSC 1388 at [34] – [36], per Johnson J:

“[34] Section 19(4) enables the Supreme Court ‘in its discretion’, to make an order affirming or setting aside the decision of the Commission. The statutory reference to the Court exercising a discretion in this respect tends to support the view that the function being carried out by the Court is not a narrow one. Likewise, the observation of Kirby P in Ganin, above, that the Court may consider whether the person had a ‘reasonable excuse’ at the time when the person appeared before the Commission, whether that head of ‘reasonable excuse’ was advanced at that time or not.

[35] In the event, I do not consider that it is necessary to explore this question further to determine the present application. The only evidence which is before me is the material which was before the Commission at the time when it made its decisions on 2 February 2005. There is no additional evidence from the Plaintiff. The arguments which have been advanced to this Court as to ‘reasonable excuse’ involve the same heads of claim as those made before the Commission on 2 February 2005, although more elaborate legal argument has occurred both in writing and orally before me.

[36] In the circumstances of this case, the function which I am undertaking under s.19(4) NSWCC Act will require a decision, on the material before me, as to whether the Plaintiff had a ‘reasonable excuse’ for the purposes of the NSWCC Act, on the grounds advanced before me, which entitled him to refuse to answer the questions put to him on 2 February 2005.” [Emphasis original.]

26. Mr Temby submitted that the argument was premature and could not apply to compelling him to answer questions at this stage. Section 45A deals with the problem that arises when a witness is charged, not by prohibiting the questioning but by quarantining the answers. It would be surprising if a witness who has not been charged could not be asked any questions at all unless the same quarantining applied to any answers, all the more so, when one of the purposes of the Commission’s investigatory processes is to identify culprits who commit serious crimes and bring them to justice. It may well follow that, if the witness should be charged and his or her answers are material to the charge, quarantine orders must be put in place, so that the prosecution team does not have access to the evidence, but this is for later consideration; s 45A(2) appears to imply that this (amongst other things) will be mandatory. Furthermore, s 39 itself removes from witnesses in the position of the plaintiff all excuses for not answering questions.

Consideration

27. The answer to the plaintiff’s assertion is simply that the Act provides no right in a witness to decline to answer questions because the answers may be communicated to investigating or prosecuting police. He is obliged to answer all questions unless he has a reasonable excuse for not doing so and the possibility or, indeed, the certainty that his answers will be made available to police cannot be, as a matter of law, a reasonable excuse. Although there is a statutory obligation not to vary the non-publication order in a way which would prejudice a fair trial (vide s 45(2)), the mere provision of information to investigating police would not do so. It may be, were the plaintiff to be charged and go to trial, non-publication orders might need to be made in relation to material being available to the prosecution team conducting the case but that is a matter to be determined in that event. In SD Barrett JA, who agreed with the orders proposed by Basten JA stated –

“[65] I am of the opinion that, on any meaning of ‘reasonable excuse’, the absence of a non-publication direction in the terms the applicant wished to see in force did not constitute ‘reasonable excuse’ for his refusal or failure to answer the two particular questions.

[66] The task of the Commission under the relevant part of s 13(9) is, in the first instance, to consider whether failure to make a non-publication direction in respect of ‘any evidence given before it’ might prejudice the fair trial of a person who may be charged with an offence. Only if the Commission decides that failure to direct non-publication might have that effect is it compelled to direct non-publication.

[67] The Commission cannot address the question of the possible or likely impact of publication on a fair trial except by reference to the particular ‘evidence given before it’. Evidence will commonly consist, as here, of questions and answers to them. Only if the answer to a question, as well as the question itself, is before the Commission can it consider the possible or likely consequences of publication of the evidence. It follows that a direction cannot be made in respect of an answer not yet given - also that a person giving evidence cannot, as it were, bargain in advance so as to be able to give answers only after a direction has been made in respect of evidence consisting of future answers and the questions to which they will respond.”

28. If I may say so with respect, this view is the only available interpretation of the relevant provisions and disposes of the contentions put forward on the plaintiff’s behalf. It is, perhaps, worth adding, that publication in the public arena of evidence given to the Commission – not automatically prohibited – might prejudice the fair trial of the witness or another person who has not yet been charged or, perhaps, even suspected. Section 45(2) would require non-publication orders in such a situation.

Conclusion

29. For these reasons I made the orders of 13 November 2015.

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Decision last updated: 10 December 2015