Director of Public Prosecutions (NSW) v Attallah

[2000] NSWSC 207

CITATION:	Director of Public Prosecutions (NSW) v Attallah [2000] NSWSC 207 revised - 3/05/2000
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 13004 of 1999
HEARING DATE(S):	13 and 14 March 2000
JUDGMENT DATE:	23 March 2000
PARTIES :	Director of Public Prosecutions (NSW) (Plaintiff) Joseph Attallah (Defendant)
JUDGMENT OF:	Bergin J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	C Barkell LCM

COUNSEL :	P Johnson SC (Plaintiff) G Stanton (Defendant)
SOLICITORS:	SE O'Connor (Plaintiff) Herd & Associates (Defendant)
CATCHWORDS:	Appeal pursuant to s 104(2) of Justices Act 1902 against orders made dismissing Informations for false swearing pursuant to s 87 of Independent Commission Against Corruption Act 1988 - Transcript of admissions of giving false evidence excluded by the Magistrate under s 90 of Evidence Act 1995 (NSW) on bases which contained errors of law - Application of s 110 of Justice Act 1902 in which the Supreme Court has power to refuse to quash or set aside orders if there are sufficient grounds to have authorised the making of the order.
LEGISLATION CITED:	Justice Act 1902 (NSW) ss. 104(2), 109, 110; Independent Commission Against Corruption 1988 (NSW) ss. 13, 37 and 38; Evidence Act 1995 (NSW) ss. 90, 135, and 137; Crimes Act 1900 (NSW) ss 330 and 331.
CASES CITED:	R.V. Swaffield (1998) 72 ALJR 339; Stanton v Abernathy & Anor (1990) 19 NSWLR 657; Director of Public Prosecutions v Alderman (1998) 45 NSWLR 526; Director of Public Prosecutions v Persson (unreported Supreme Court of New South Wales 16 April 1996 B.M. James J);
DECISION:	Sufficient grounds existed to have authorised the making of the order - Appeal dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BERGIN J

THURSDAY 23 MARCH 2000

13004/99 - DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v JOSEPH ATTALLAH

JUDGMENT

1 The plaintiff appeals pursuant to s 104(2) of the Justices Act 1902 from an order made by C Barkell, Local Court Magistrate (the Magistrate), at the Downing Centre Local Court on 24 August 1999 dismissing five Informations against the defendant alleging offences of giving false evidence on oath contrary to s 87 of the Independent Commission Against Corruption Act 1988 (ICAC Act).

2    On 7 February 2000 Barr J extended the time for instituting an appeal until 14 December 1999 when the proceedings were commenced.

3    On 13 March 2000 the matter was listed before Justice B.J. O’Keefe as Duty Judge in the Common Law Division but His Honour having been the Commissioner of the Independent Commission Against Corruption at the relevant time, although not the Commissioner who heard the proceedings in which it is alleged the offences occurred, disqualified himself from hearingthis action and referred the matter to me. It was heard on 13 and 14 March 2000 when Mr P Johnson SC appeared for the plaintiff and Mr G Stanton, of Counsel, appeared for the defendant.

The ICAC Hearing

4    During September and October 1997 the Independent Commission Against Corruption (ICAC) was conducting an investigation into the conduct of officers of the Department of Corrective Services. As part of that investigation the ICAC was examining the conduct of a prison officer, Toso Lia Sua. In the course of that investigation, the defendant was called to give evidence concerning his association with Mr Sua. The defendant gave evidence at a private hearing on 23 September 1997 and at public hearings on 17 and 21 October 1997. On each occasion the defendant was represented by Christopher Pike of Counsel.

5 Section 37 of the ICAC Act relevantly provides as follows:

37 Privilege as regards answers, documents etc


(1) A witness summoned to attend or appearing before the Commission at a hearing is not entitled to refuse:

(a) to be sworn or to make an affirmation, or
(b) to answer any question relevant to an
investigation put to the witness by the Commissioner or other person presiding at a hearing, or
(c) to produce any document or other thing in the witness’s custody or control which the witness is required by the summons or by the person presiding to produce.
(2) A witness summoned to attend or appearing before the Commission at a hearing is not excused from answering any question or producing any document or other 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.
(3 ) An answer made, or document or other 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 or in any disciplinary proceedings.
(4) Nothing in this section makes inadmissible:
(a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or
(b) any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or
(c) any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

6 In circumstances where a witness objects to answering questions the Commissioner has a power to make a declaration pursuant to s 38 which provides as follows:

38 Declaration as to objections by witness
The Commissioner or person 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.

7 When such an objection is taken and a declaration is made pursuant to s 38 the witness is protected from the evidence given in answer to the questions objected to being used against him except in proceedings for an offence against the ICAC Act or for contempt under the ICAC Act.

23 September 1997 Hearing (Day 1)

8    On 23 September 1997 when the defendant gave evidence at the ICAC the Commissioner explained to him that he had been summoned to appear before the Commission and he was required to swear to tell the truth. The Commissioner then said:

I should say to you that you are not entitled to refuse to answer any questions down here. You can’t, for example, refuse to answer questions on the basis that the answer might incriminate you as you could if you were being interviewed by the police. But I am empowered under the Act to make a declaration, the effect of which is to ensure that anything you say down here can’t be used against you in any civil or criminal proceedings. Do you understand that?….Yes.
I propose to make that declaration but you should clearly understand that it won’t protect you against the consequences of giving untruthful evidence down here. If you tell lies to us down here it can be a very serious matter, the consequences of which can be up to five years in goal, do you understand that? So the declaration I propose to make will protect you against the use of your answers in any civil or criminal proceedings but it won’t protect you if you tell us untruths as part of your evidence.
Pursuant to s 38 of the Independent Commission Against Corruption Act I declare that all answers given by this witness and all documents and things produced by him are to be regarded as having been given or produced on objection and accordingly there is no need for the witness to make objection in respect of any particular answer given or document or thing produced.
(Tr. 2055-2056 )

9    Counsel Assisting then asked a series of questions of the defendant and it is apparent that the transcript ran from pages 2056 to 2075 at which time the Commissioner informed Counsel Assisting that he wanted him to stop there as "we are having difficulty apparently picking up in English what the witness is saying for the purpose of the transcript. I think we will just swear in the interpreter and deal with it that way”. Page 2076 of the transcript records that an interpreter was then sworn and the Commissioner said:

I would like you to interpret to this witness what I am about to say. Mr Attallah, I am having great difficulty accepting what you are saying to me. I have given you the benefit of the protection which the Act empowers me to give. I have told you that the s 38 declaration will protect against the consequences of giving evidence which might otherwise incriminate you. I’ve told you that the answers you give cannot be used in any civil or criminal proceedings against you. However I want you to clearly understand again that if you give untruthful evidence to the Commission s 87 of the Act makes it a very serious criminal offence.
I want you to understand that if you give false or misleading evidence to the Commission that can lead to imprisonment for up to five years. Do you understand that?

Both the witness and the interpreter are recorded as having responded yes.

10    The following exchange then took place:

Mr Pike: Mr Commissioner, if I may, I might be able to assist perhaps a little more if I was to have perhaps several minutes with the witness.
Mr Whitford (Counsel Assisting): I was just going to suggest the same, Mr Commissioner.
Mr Pike: I can appreciate where you are coming from Mr Commissioner.
The Commissioner: My concern is that what this witness is telling us is absolute nonsense and we know it to be so.
Mr Pike: I think it might be a mixture of not understanding the nature and character of the shape of my friend’s questions together with also a very abundant and sort of street learned caution…
The Commissioner: I can understand that too but he is just going to have to relax a bit or he is going to get himself into all sorts of difficulty.
Mr Pike: Thank you sir.
(Tr. 2076-2077)

11    After a short adjournment the defendant returned to the witness box and was asked questions by Counsel Assisting. The plaintiff submitted that the transcript discloses that the defendant gave evidence through the interpreter during which he:

(a) denied that he had given Mr Sua money (Tr. 2078-2080) ;
(b) denied that Mr Sua had worked at a brothel in Mons Road (Tr. 2083-2084) ; (c) denied that he had supplied heroin to prostitutes working at the Mons Road brothel (Tr. 2104);
(d) denied that Mr Sua had brought prohibited items (food and alcohol) to him whilst in custody (Tr. 2086) ; and
(e) denied that he had asked Mr Sua to arrange an assault on Ahmed Dabbous in custody (Tr. 2105) .
17 October 1997 Hearing (Day 2)

12    On this occasion the defendant was once again represented by Mr Pike of Counsel and gave his evidence through an interpreter. At the commencement of this hearing Counsel Assisting commenced questioning the defendant and the following exchange then took place:

Mr Pike: Mr Commissioner, Mr Attallah gives this evidence under objection.
The Commissioner: Well that’s not how it works down here. He either takes objection or I make a declaration. What would you like me to do.
Mr Pike: Well if you would, Mr Commissioner, as it happened on the last occasion. I just took it that was procedurally the case rather than me…..
The Commissioner: Well, we normally do those sorts of things if I’m asked to, if I’m not, I don’t. I take it your asking…
Mr Pike: I apologise, Mr Commissioner, please….
The Commissioner: Do you have any objection to that course Mr Whitford?
Mr Whitford: No Commissioner.
The Commissioner: Mr Attallah, you’ve been summoned to give evidence here today and you are required to answer each and every question that is put to you by counsel. Do you understand that?
The witness: Yes.
The Commissioner: You are not free to refuse to answer a question, for example, on the grounds that the answer may tend to incriminate you. Do you understand that?
The witness: Yes.
The Commissioner: I am, however, empowered under the Act to make a declaration the effect of which is to ensure that the evidence that you give here today can’t be used in any criminal or civil proceedings and I propose to make that declaration.
The interpreter: Yes, thank you.
The Commissioner: You should clearly understand, however, that that declaration won’t protect you against the consequences of giving untruthful evidence.
The interpreter: Okay.
The Commissioner: And giving untruthful evidence down here is a very serious matter, the consequences of which can be a gaol term of up to five years.
The witness: Right.
The Commissioner: I should say to you that it will not protect you in relation to any offence that you may have committed against the ICAC Act. Do you understand that?
The witness: Yes.
The interpreter: Yes.
(Tr. 225 - 227)

13    The defendant then gave evidence and:

(a) admitted that he had given money to Mr Sua (Tr. 271) ;
(b) admitted that Mr Sua had worked at the Mons Road brothel (Tr. 253-258) ; (c) admitted that he had supplied heroin to prostitutes working at the Mons Road brothel (Tr. 251-252; 278);
(d) admitted that Mr Sua did bring prohibited items to him whilst in custody (Tr. 278-282; 296; 297) ; and
(e) admitted that he had asked Mr Sua to arrange an assault on Ahmed Dabbous in custody (Tr. 268-271) .
21 October 1997 Hearing (Day 3)

14    The defendant was once again called to give evidence on 21 October 1997 at a public hearing and was again represented by Mr Pike of Counsel and gave evidence through an interpreter. On this occasion the following exchange took place at the commencement of the hearing:

Mr Pike: Mr Commissioner, might Mr Attallah have the s 38 declaration.
The Commissioner: Certainly. I take it there is no need to explain again the effect of that? I mean, I have in the past and I am sure you have.
Mr Pike: Not unless he requires it Mr Commissioner. I don’t think so. You understand Mr Attallah?
The witness: No not really.
The Commissioner: Mr Attallah as I think I said to you on the last occasion you’ve been summoned here to give evidence and you are required to answer each and every question that Mr Whitford puts to you.
The witness: Alright.
The Commissioner: You’re not free to refuse to answer questions for example, on the grounds that the answer might tend to incriminate you.
The Interpreter: Yes.
The Commissioner: However, I am empowered under the Act to make a declaration, the effect of which is to ensure that the evidence you give here today can’t be used in any criminal or civil proceedings.
The Interpreter: Yes.
The Commissioner: That protection does not apply in relation to offences committed against the Act and in particular it won’t protect you against the consequences of giving untruthful evidence. Do you understand that?
The witness: Yes.
The Commissioner: Thank you. Pursuant to s 38 of the Independent Commission Against Corruption Act I declare that all answers given by this witness and all documents and things produced by him are to be regarded as having been given or produced on objection and accordingly there is no need for the witness to make objection in respect of any particular answer or document or thing produced.

(Tr. 423-424)

15    Counsel Assisting then asked the defendant a series of questions in which he reminded him of the evidence that he had given on Day 2 seeking his confirmation of that evidence. Having done that Counsel Assisting then asked the defendant whether it was the truth and the defendant responded that it was. Counsel Assisting then provided the defendant with a copy of the transcript from the hearing on Day 1 and through the interpreter reminded him of the evidence he had given on that occasion. Counsel Assisting then suggested to the defendant that various portions of that evidence was not truthful. After further questions the following exchange then took place:

Mr Pike: Mr Commissioner, I appreciate where my friend’s going, what he’s trying to do, however I’d like to point out that there was difficulty with the English language with this witness. It’s quite clear that he does have that difficulty. At this - during this particular time I don’t think we actually had an interpreter at that point.
The Commissioner: I think you’re right. We didn’t. Perhaps you could move on Mr Whitford .
(Tr. 429)

16    Counsel Assisting then questioned the defendant about his evidence on Day 1 during the period in which an interpreter had been sworn to assist the witness. The following matters appear from the transcript:

(a) The defendant was questioned about his evidence that he had not given Mr Sua money and was asked whether his evidence to that effect was false or misleading. The defendant did not accept it was false and sought to explain his answers upon the basis of a misunderstanding (Tr.430-431) .

(b) The defendant was questioned about his denial that Mr Sua had worked at the Mons Road brothel. It was suggested to him that his evidence to that effect was false and that his evidence to the contrary was true. The defendant was equivocal in his response to these questions (Tr. 432-435) .

(c) The defendant was questioned about his denial that he had supplied heroin to prostitutes working at the Mons Road brothel. The defendant agreed that his answer was not true and that he knew that it was not true at the time he gave that evidence (Tr. 437) .
(d) The defendant was questioned about his evidence that Mr Sua did not bring prohibited items to him whilst he was in custody. The defendant agreed that his evidence to that effect was not true and that he knew it was not true at the time that he gave his evidence (Tr. 436-437) ; and

(e) The defendant was questioned about his denial that he asked Mr Sua to arrange an assault on Ahmed Dabbous in custody. He admitted that the evidence that he had given on Day 2, in which he admitted to such a discussion with Mr Sua, was the truth. He agreed that his evidence on Day 1 was “wrong” and that he knew it was wrong at the time that he gave his evidence (Tr. 440-442) .

17    At the conclusion of the abovementioned examination by Counsel Assisting the defendant was examined by Mr Hall, Counsel for Mr Sua, in which the following evidence was given:

Mr Hall: Is it the case, Mr Attallah, that you came here on 23 September last with the intention of telling lies?
The Interpreter: No not true. I wanted to tell the truth.
Mr Hall: What was the reason you told lies for then?
The Interpreter: Because I didn’t want anyone to be in trouble because of me.
Mr Hall: Alright. So its you position on that particular day you came here to protect Mr Sua; was that your intention?
The Interpreter: Correct.
Mr Hall: Because prior to that you’ve been good friends?
The Interpreter: We were friends correct.
(Tr. 442-443)

18    The defendant was then examined by his Counsel, Mr Pike. The following evidence was given:

Mr Pike: Mr Attallah you’ve been asked a lot of questions about the first occasion you gave evidence…. In answer to one of those questions you said words to the effect, you didn’t want to get anybody into trouble. Is that correct?
The Interpreter: Correct.
Mr Pike: Were you also afraid that you might get yourself into trouble?
The Interpreter: Yes, in the beginning - in the beginning, but then after that I understood from the Commission that I should tell the truth and I wouldn’t get into trouble.
Mr Pike: Was it that day you understood that or was it at a later time?
The Interpreter: No it was at the end of the day.
Mr Pike: At the end of the day. Was it after the - these proceedings had ceased?
The witness: Yes.
The Interpreter: Yes.
Mr Pike: Was I part of that understanding?
The Interpreter: Yes.
Mr Pike: Your evidence changed dramatically didn’t it?
The Interpreter: Yes, correct.
Mr Pike: You admitted to supplying heroin?
The Interpreter: Correct.
Mr Pike: You admitted to receiving goods in jail?
The Interpreter: Correct.
Mr Pike: You admitted to these things because is it true, you understood that you were safe to admit them?
The Interpreter: Yes correct.
Mr Pike: At the beginning of the proceedings on (Day 1) the Commissioner made a declaration. Do you understand what I mean by that?
The Interpreter: Yes.
Mr Pike: He spoke some very complicated words to you in English. Did you understand them?
The Interpreter: The interpreter explained them to me.

Mr Pike: At the beginning of the proceedings there was no interpreter, do you recall that?

The Interpreter: No, in the beginning I didn’t understand what he was saying.
(Tr. 448-449)
The Informations

19 On 15 February 1999, Informations were laid against the defendant alleging five offences of giving false evidence on oath at a hearing before ICAC on 23 September 1997 contrary to s 87 of the ICAC Act. Section 87 provides:

87 False or Misleading Evidence
A person who, at a hearing before the Commission, gives evidence that is, to the knowledge of the person, false or misleading in the material particular is guilty of an indictable offence.
Maximum penalty: 200 penalty units or imprisonment for five years, or both.

20    The Informations allege that on 23 September 1997 the defendant being a person giving evidence on oath at a hearing before ICAC:

(a) did give false evidence in a material particular, to wit, that he did not give Toso Sua money, such evidence being false to the knowledge of the defendant;
(b) did give false evidence in a material particular, to wit, that Toso Sua did not work at the Mons Road brothel, such evidence being false to the knowledge of the defendant;
(c) did give false evidence in a material particular, to wit, that he did not supply heroin to the prostitutes working at the Mons Road brothel, such evidence being false to the knowledge of the defendant;
(d) did give false evidence in a material particular, to wit, that Toso Sua did not bring prohibited items to him whilst in custody, such evidence being false to the knowledge of the defendant; and
(e) did give false evidence in a material particular, to wit, that he did not ask Toso Sua to arrange an assault on Ahmed Dabbous in custody, such evidence being false to the knowledge of the defendant.

Local Court Hearing

21    On 24 August 1999 the Informations were heard before the Magistrate, at the Downing Centre Local Court. Senior Counsel for the defendant objected to the tender of the entirety of the ICAC transcript of 23 September 1997 and 21 October 1997. A voir dire was conducted during which Mr Pike of Counsel was called to give evidence.

22 The objections to the tender of the transcripts were based upon ss 90, 135 and 137 of the Evidence Act 1995. The Magistrate rejected that portion of the evidence on 23 September 1997 which had been given prior to an interpreter being sworn. There is no challenge to this rejection of evidence.

23    The Magistrate rejected the whole of the evidence given on 21 October 1997 which ruling is the subject of the appeal. In giving judgment in respect of the rejection of that transcript the Magistrate said:

In this matter there is a challenge made to the admission into evidence of what I will call day one and day three of the transcript of evidence taken before a Commissioner of the ICAC. I will deal with day 3 first. The defence says, so far as that day is concerned, that the forensic purpose of day 3 was purely directed to its obtaining admissions for lying in a criminal prosecution. The whole aim was a prosecution for perjury. It is the prosecution’s position that the defendant having given contradictory answers in day 2, to the answers that he had given in day 1. There was an entitlement to probe and indeed to explore whether or not it was acceptable to put to him his previous answers and to get him to admit falsity of those answers.
So far as the inquiry under the ICAC Act is concerned, the principal functions of the commission is set out in s 13 of that Act, and the relevant one here is to investigate allegations of corrupt conduct, and it was for that purpose the defendant was summonsed to appear and as I said the prosecution says to fulfil the function it is acceptable to get him to admit falsity. Whether or not that is the case, and I must say that I have strong doubts about that, it certainly would be acceptable to explore which one of contradictory answers were the truth, but this might be a backward way of going about that. But whether or not that is acceptable for the purposes of an inquiry and an investigation into corrupt conduct, the prosecution now seeks to use those admissions and it seems to me that they are properly characterised as admissions, to sustain a prosecution for perjury. It seeks to use those admissions in circumstances where the defendant had no right to refuse to answer questions and was not told that the purpose of the questions on day 3, were to obtain evidence for a prosecution for perjury. It seems to me that under these circumstances, this is properly a circumstance where I must consider my discretion to exclude admissions given by s 90 of the Evidence Act. It seems to me that these are properly characterised as admissions. I must say that I have some doubts about the other matters being properly characterised as admissions and that that section that does apply.
The circumstances in which the admissions were obtained, were as I have said, circumstances where the defendant was not told the purpose of eliciting these admissions. He was not told that the admissions that could be used for the purposes that they now seek to be used. It may well be as the prosecution says, that they were required for other purposes but he certainly wasn’t told that the admissions could be used against him in a prosecution for perjury. He was also given no right to refuse to answer the questions and it seems to me, that in the circumstances, insofar as day 3 is relevant to this prosecution, and I understand from the particulars that I have been provided, it is only relevant for the admissions of lying which it contains, that day 3 should be excluded and in the exercise of my discretion under s 90 I do exclude it.

24    The Magistrate accepted that the evidence given by the defendant on 23 September 1997 and on 17 October 1997 at the ICAC hearings with respect to the five topics which were the subject of the charges could not both be true. Her Worship said that “the prosecution must prove the particulars they have asserted in their Information are the ones which are false”.

25 In prosecutions for perjury or false statements on oath not amounting to perjury under s 330 of the Crimes Act 1900 (as amended) s 331 of that Act provides that if:

(a) The jury is satisfied that the accused has made 2 statements on oath and one is irreconcilably in conflict with the other;
(b) the jury is satisfied that one of the statements was made by the accused knowing it was false or not believing it was true but the jury cannot say which statement was so made,
the jury may make a special finding to that effect and find the accused guilty of perjury of an offence under section 330, as appropriate, and the accused is liable to punishment accordingly.

26    There is no equivalent provision in the ICACAct and accordingly such a special finding was not open to the Magistrate. Stanton v Abernathy & Anor (1990) 19 NSWLR 657 per Gleeson CJ at 659F-G; 661E-G The admission of the transcript of Day 3 was therefore of critical importance for proof beyond reasonable doubt that the statements on Day 1 were the false statements.

27    Although finding a prima facie case upon the basis that there was an implication from a reading of the transcripts of Day 1 and Day 2 that the evidence on Day 1 was false, the Magistrate dismissed the Informations upon the basis that she could not be satisfied beyond reasonable doubt that that was so.

Nature of Appeal and Powers of the Court

28 Section 104(2) of the Justices Act (NSW) provides:

Appeals by Informants . An Informant may appeal under this division to the Supreme Court against an order dismissing an information or complaint or order for costs made, or sentence imposed, by a Magistrate in summary proceedings on a ground that involves a question of law alone.

29    The plaintiff appeals against the Magistrate’s order dismissing the five Informations and seeks the following orders and declarations:

1. An order pursuant to s 109(a) of the Justices Act 1902 quashing the orders of Ms C Barkell, Magistrate, dismissing five Informations laid against the defendant for the offence of giving false evidence to the Independent Commission Against Corruption.
2. A declaration that the Magistrate erred in law in not admitting into evidence certain portions of the evidence given by the defendant before the Independent Commission Against Corruption on 21 October 1997.
3. A declaration that the Magistrate erred in law in dismissing the Informations.
4. An order that each of the matters be remitted to the Magistrate to be dealt with according to law.

30 The powers of the Supreme Court in determining appeals are provided in s 109 as follows:

Powers of Supreme Court in determining appeals
s 109 The Supreme Court, may after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:
(a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it,
(b) increasing or reducing the sentence appealed against,
(c) making such other orders as it thinks just,
(d) remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal.

31 Section 110 provides:

Errors in form or law not of themselves to enable appeal success
s 110(1) The Supreme Court is not to quash or set aside a conviction, order or sentence on an appeal merely because of:
(a) an omission or mistake in the form of the conviction or order, or
(b) any error in law in the order or sentence,
if it appears to the Supreme Court that there were sufficient grounds before the Magistrate to have authorised a conviction, order or sentence free from the omission, mistake or error.
(2) In any such case, the Supreme Court may:
(a) amend the conviction, order or sentence and determine the appeal as if the omission, mistake or error did not exist, or
(b) remit the case to the Magistrate to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly .

Grounds of Appeal

32 The plaintiff argued that the Magistrate had erred in the exercise of her discretion pursuant to s90 of the Evidence Act 1995 (NSW) (the Evidence Act) in rejecting the tender of the transcript of Day 3. Section 90 provides:

Discretion to exclude admissions
90. In a criminal proceeding the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:
(a) the evidence is adduced by the prosecution, and
(b) having regard to the circumstances in which the admission was made it would be unfair to the defendant to use the evidence.

33 The exercise of the discretion under s90 to exclude evidence of admissions is dependent upon a finding that, by reason of the circumstances in which the admissions were made, unfairness to the defendant would result if they were admitted into evidence.

34 The concept of unfairness in s 90 is expressed in the widest possible form R v Swaffield (1998) 72 ALJR 339 at 357 per Toohey, Gaudron & Gummow JJ. In my opinion the term “unfair to the defendant” in s90 does not mean it would be permissible to exclude such evidence simply because the defendant had been subjected to the proper exercise of coercive powers during which the admissions were made.

35    If the exercise of the power is not the subject of challenge some circumstances, for instance promises or inducements such as to render the admissions involuntary, would be a proper basis for excluding the admissions on the basis of unfairness to the defendant. However whether unfairness would result will depend upon the circumstances of each case.

Ground 1

36    The plaintiff’s first ground of appeal was that the Magistrate had regard to the fact that the defendant was not told the purpose of eliciting the admissions. It was submitted that the Magistrate had concluded that the purpose was to use the admissions in a prosecution of the defendant for false swearing.

37    It was submitted that the ICAC was entitled to ask the questions on Day 3 as part of its legislative function pursuant to s13 of the ICAC Act. In this instance it was investigating allegations of corrupt conduct made against certain Corrective Services Officers. Emphasis was placed upon the ICAC’s entitlement to form opinions as to whether consideration should be given to prosecuting particular people. Section 13(5) of the ICAC Act provides:

The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission’s power to make findings and form opinions:
(a) findings that particular persons have engaged, are engaged or are about to engage in corrupt conduct,
(b) opinions as to whether consideration should or should not be given to the prosecution or the taking of action against particular persons,
(c) findings of fact.

38    It was also submitted that the ICAC was entitled to explore with the defendant which of his versions were true and why the false version was given, for the purpose of understanding the alleged corrupt relationship between the defendant and Mr Sua. Mr Stanton conceded that as no point was raised at the ICAC hearings that such questioning was beyond power he could not rely upon the point before me.

39    The plaintiff submitted that a conclusion that the purpose was to use the admissions in a prosecution of the defendant was not open to the Magistrate as there was no evidence upon which such conclusion could reasonably be reached. I am satisfied that such a conclusion was permissible and reasonably reached on the evidence before the Magistrate.

40    The defendant had already made admissions to the subject matters on Day 2. Although the ICAC was entitled to seek clarification as to which evidence was true and which was false the ambit of those questions on Day 3 and the fact that the prosecution ensued was, in my view, evidence upon which the Magistrate could reasonably have reached the conclusion about the purpose of the questioning on Day 3. The fact that there may have been another purpose does not detract from the Magistrate’s entitlement to have reached such a conclusion.

41    It was submitted that in any event the defendant’s Counsel understood what was happening on Day 3 and made no objection. It was also submitted there was no basis for the finding by the Magistrate that the defendant was not told the purpose of eliciting the admissions.

42    The transcript of Day 3 does not contain any express statement that the evidence was being gathered for a prosecution against the defendant in relation to the false evidence he had given on Day 1. The Magistrate found that the defendant was not told the purpose of eliciting these admissions.

43    The plaintiff complained that such a finding was inconsistent with the defendant’s counsel’s statement Mr Commissioner, I appreciate where my friend’s going, what he’s trying to do. It is this statement that is relied upon by the plaintiff for the submission that the defendant’s counsel understood what was happening on that day and made no objection.

44    It must be remembered that this statement was made at a time when Counsel Assisting was seeking to elicit admissions from the defendant about evidence that had been given on Day 1 without the assistance of an interpreter. The defendant’s counsel did object at this stage and his objection was successful. Counsel Assisting was told to move on. It is true that the defendant’s counsel did not object to the further questions.

45    In assessing this ground of appeal it is important to have regard to the Commissioner’s statement to the defendant on Day 3 prior to making the s38 Declaration. The defendant was told that the Commissioner’s declaration would ensure that the evidence you give here today can’t be used in any criminal or civil proceedings and that such protection does not apply in relation to offences committed against the Act and in particular it won’t protect you against the consequences of giving untruthful evidence.

46 These statements by the Commissioner combined with the defendant’s counsel’s apparent understanding of where the Counsel Assisting “was going” and what he was “trying to do”, whatever that may mean, do not amount to the defendant being told that the purpose of eliciting the admissions was for use in prosecution against him under s87 of the ICAC Act.

47    I am satisfied that the Magistrate’s finding that the defendant was not told the purpose of eliciting the admissions was a finding properly available on the evidence.

48    Mr Johnson expanded the submission to include the complaint that the finding was irrelevant to the Magistrate’s task in considering the fairness of the circumstances in which the admissions were obtained. He submitted that it would not have mattered whether the defendant was told that there was such a purpose because the defendant had an obligation to answer the questions in any event. It is true that the defendant was obliged to answer the questions however I will deal with this submission in relation to Ground 3 of the Appeal.

Ground 2

49    The plaintiff complained that the Magistrate erred in her finding that the defendant was also given no right to refuse to answer the questions. It was submitted that by reason of s 37 of the ICACAct the defendant had no right to refuse to answer any questions and accordingly the Magistrate had regard to a legally erroneous proposition in this aspect of her reasoning.

50 It is the case that s37 of the ICAC Act required the defendant to answer all the questions posed to him and the concept of a right being granted to him to refuse to answer in the circumstances of the provisions of the ICAC Act governing the hearing was not one properly available for consideration by the Magistrate.

Ground 3

51    The plaintiff submitted that it was clear that the Magistrate was of the view that allowing into evidence the transcript of Day 3 containing the admissions would be unfair because the admissions had not been given voluntarily. Although there is no express statement in the Magistrate’s reasons that the admissions were involuntary, this appeal has been argued on the basis that such a consideration was implicit in those reasons.

52    It was submitted that the Magistrate fell into error in excluding the evidence on the basis that the admissions had not been made voluntarily, particularly in the light of the following:
· there was no evidence that the defendant had been badgered or overborne;
· the defendant gave evidence through an interpreter and was represented by Counsel;
· his rights and obligations had been explained and a s38 declaration had been made;
· the defendant well understood his obligations as at 21 October 1997.

53    The plaintiff relied on Director of Public Prosecutions v Alderman (1998) 45 NSWLR 526 (Alderman). In Alderman, a Magistrate rejected the tender of a transcript of evidence before the Police Royal Commission upon the basis that the evidence, which was confessional evidence, was not admissible because it was not given voluntarily.

54    That evidence had been tendered in a prosecution of Mr Alderman for furnishing a Statement of Information which he knew to be false or misleading in a material particular. There was no suggestion in Alderman that the witness had been badgered or overborne in any way in giving his evidence.

55    The point taken before the Presiding Magistrate in that case was that the evidence was not given voluntarily because the defendant’s preferred position was to remain silent. The Magistrate excluded the evidence upon the basis that it was not voluntary and dismissed the information. In doing so the Magistrate relied upon Director Prosecutions v Persson (unreported Supreme Court of New South Wales 16 April 1996 B.M. James J).

56    In Persson B.M. James J was considering the terms of the ICAC Act and in so doing said at p 13-14:

Section 37 expressly abolishes the privilege against self-incrimination. However, it does not expressly abolish, or even refer to, the voluntariness rule. The submissions of Counsel for the appellant seem to me to depend on an identification of the privilege against self-incrimination and the voluntariness rule, so that the abolition of the privilege against self-incrimination would also amount to an abolition of the voluntariness rule. However, the privilege and the rule have different origins (see Cross on Evidence 4th Australian Edition (1991) par (33620)) and the voluntariness rule has in the cases been said to have a variety of rationales, only some of which could apply to the privilege against self-incrimination (see Cross at pars (33620) (33625)).
The actual terms of subss (3) and (4) of s 37 do not assist the appellant. Under subs (3) an answer made by a witness at a hearing before the Commission is not admissible in evidence against the person in any criminal proceedings. Subsection (4) provides that nothing in s 37 makes any answer inadmissible in proceedings for an offence against the Act. Accordingly, the effect of subs (4) is to remove the bar to admissibility which would otherwise arise from subs (3) of s 37. Subsection (4) does not provide, positively that any such answer is to be admissible in proceedings for an offence against the Act. It does not affect any ground of exclusion which arises otherwise than under s 37. In particular, it does not provide that answers which were given involuntarily are to be admissible in proceedings for an offence against the Act. (Emphasis added)

57    In Alderman Sheller JA observed at 535F that the respondent in that case gave his evidence not willingly but because s 11 of the Royal Commissions Act 1923 required him to do so and that there was “no other inducement”.

58 In considering this ground of appeal it is once again important to have regard to the statements made to the defendant by the Commissioner on Day 3 prior to the making of the s38 Declaration. The defendant was informed that the declaration would ensure that the evidence you give here today can’t be used in any criminal or civil proceedings and that such protection does not apply in relation to offences committed against the Act and in particular it won’t protect you against the consequences of giving untruthful evidence. (emphasis added)

59    This latter statement by the Commissioner relating to the extent of the protection of the Declaration was slightly different from the statement he made on Day 2 which was you should clearly understand, however, that the declaration won’t protect you against the consequences of giving untruthful evidence. And giving untruthful evidence down here is a very serious matter, the consequences of which can be a goal term of up to five years. I should say that it will not protect you in relation to any offence that you may have committed against the ICAC Act.(emphasis added)

60    On Day 3 there was no repetition of the words any offence that you may have committed but rather a more general statement about offences committed and the consequences of giving untruthful evidence.

61    On Day 3 the defendant gave evidence that after the completion of the evidence on Day 1 he understood from the Commission that I should tell the truth and I wouldn’t get into trouble. This evidence was not challenged by Counsel Assisting in any further examination of the defendant and it was evidence before the Magistrate.

62 The reasons the Magistrate gave for rejecting the evidence pursuant to s90 of the Evidence Act disclose a conclusion that it would be unfair to admit the evidence in all the circumstances of the way in which the admissions had been obtained. The Magistrate specifically referred to the fact that the defendant was not informed that the admissions to be obtained on Day 3 would be used against him in a criminal prosecution and that he had not been given a right to refuse to answer the questions.

63 It is submitted that this order contains errors of law. Firstly because there was no relevant consequence that would have flowed from the ICAC informing the defendant that the admissions were being sought for a prosecution because the defendant had to answer the questions in any event and secondly that by reason of s37 there was no “right” to be given to the defendant to refuse to answer the questions.

64    To have concluded that the admissions were involuntary on the basis that there was no disclosure of the purpose of obtaining the admission and the failure to give a right to refuse to answer the questions, was in my view an error of law.

65 However I am satisfied that there were sufficient grounds before the Magistrate to exclude the evidence pursuant to s90 of the Evidence Act. The defendant was under the apprehension (a misapprehension as it turned out) that if he told the truth on Days 2 and 3 he wouldn’t get into trouble. His evidence was that he had that understanding from the Commission. As an unchallenged statement this was evidence of what Sheller JA referred to in Alderman as “some other inducement” which in my view would render the admissions involuntary for the purposes of the prosecution. This may well have been what the Magistrate had in mind but it is not found in the order she made excluding the evidence.

66    In my view that evidence alone would have provided sufficient grounds for the magistrate to exercise her discretion to exclude the evidence.

67 Additionally on Day 3, when asked whether he had understood the previous explanations given to him by the Commissioner in relation to the s38 Declaration the defendant said No not really. The more general reference on Day 3 to offences committed and the “giving” of untruthful evidence take on a deal of significance. As I understand the plaintiff’s submissions it is not suggested that the defendant gave untruthful evidence on Day 3, but rather that he gave truthful evidence on Day 3 to the effect that he had given untruthful evidence on Day 1.

68 When viewed with the defendant’s evidence that he understood that he would not get into trouble for telling the truth on either Day 2 or Day 3, I am satisfied that the statements and explanations made by the Commissioner, at the time that he made the s38 Declarations, do not detract from the defendant’s evidence that he understood from the Commission that he would not get into trouble if he told the truth.

69    The plaintiff has approached this appeal on the basis that it is the order made excluding the evidence that has infected the final orders made dismissing the informations. There were no separate or additional complaints made against the dismissals.

70    During the course of Mr Johnson SC’s oral submissions I raised with him my concerns about the defendant’s evidence as to his understanding from the Commission that he would not get into trouble and whether I could deal with that aspect of the evidence notwithstanding the Magistrate had not referred to it in her reasons. Mr Johnson SC submitted that I would fall into error if I took that evidence into account in determining this appeal.

71 I disagree with that submission as I take the view that s110 of the Justices Act 1902 enables me to take it into account if I am of the view that it formed a sufficient ground for the Magistrate to “have authorised the order”.

72 In this instance the final orders made dismissing the Informations were made on the basis of the exclusion of the evidence of Day 3. Those orders therefore contained and/or were infected by the errors of law to which I have referred earlier. I am however of the view that pursuant to s110 of the Justices Act 1902 such order was authorised as there were sufficient grounds for the exclusion of the evidence upon which the final order was based.

73 The Court has a discretion to deal with the matter itself (s110(2)(a)) or remit it to the Magistrate (s110 (2)(b)). In this case as the Court is seized of all the facts that were before the Magistrate and in the interests of finality of the litigation, and having regard to the findings I have made in respect of the defendant’s understanding, I am of the view that it is appropriate to determine the appeal in this Court pursuant to s110 (2)(a)

74    It seems to me that the Court has a discretion as to whether it will amend the order the subject of the appeal. On one view the orders dismissing the Informations do not need amendment. However to the extent that such order is infected by the errors of law and reliant upon the rejection of the evidence of Day 3 I amend the order made by the Magistrate by deleting therefrom the references to the defendant not being informed of the purpose of obtaining the admissions and not being given a right to refuse to answer the questions. Such order is further amended by inserting that to admit the evidence would be unfair to the defendant on the basis that the admissions were obtained from him on the induced basis of his stated understanding from the ommission that if he made the admissions he would “not get into trouble” and were therefore involuntary.

75 Having amended the order I determine the appeal pursuant to s110(2)(a) of the Justices Act 1902 in the defendant’s favour and dismiss the appeal.

76    The summons is dismissed. In the circumstances of the plaintiff having established that the orders made by the Magistrate contained errors of law I am satisfied that the appropriate costs order is that each party pay their own costs of the appeal.

***********

Last Modified: 09/25/2000