Director of Public Prosecutions v Green

[2002] NSWSC 594

Reported Decision: (2002) A Crim R 476

New South Wales

Supreme Court

CITATION:	DPP v Green [2002] NSWSC 594
FILE NUMBER(S):	SC 10843/02
HEARING DATE(S):	1 July, 2002
JUDGMENT DATE:	1 July 2002
PARTIES :	Director of Public Prosecutions Garry Raymond Green
JUDGMENT OF:	Hidden J at 1

COUNSEL :	P Lakatos - Plaintiff G Brady - Defendant
SOLICITORS:	SE O'Connor - Plantiff
CATCHWORDS:	CRIMINAL LAW: Appeal from Local Court - informations under s 80(c) of the ICAC Act - prosecution relying on answers given at ICAC hearing - whether subject to protection of s 37(3) of Act.
LEGISLATION CITED:	Justices Act 1902 Independent Commission against Corruption Act 1988 Evidence Act 1995
DECISION:	See paragraph 12.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

10843/01 – Director of Public Prosecutions (NSW) v Gary Raymond GREEN

JUDGMENT

1 HIS HONOUR: This is an appeal by the Director of Public Prosecutions under Pt 5 of the Justices Act 1902 against the dismissal by a magistrate of two informations brought against the defendant, Gary Raymond Green.

2 On 3 December 1996 the defendant was interviewed by investigators from the Independent Commission against Corruption (ICAC) concerning his purchase of a number of mobile telephones. The ICAC was involved in an investigation into the practices and procedures of some Aboriginal Land Councils in New South Wales. To investigators the defendant provided two answers concerning who was to be billed and who was to pay for those phones. On 6 June 1997 the defendant gave evidence at a public hearing of ICAC during which, it is alleged, that he admitted having lied to ICAC investigators on 3 December 1996.

3 Before giving evidence the defendant sought, and was granted, a declaration under s 38 of the IndependentCommission against Corruption Act 1988, the effect of that declaration being that all his answers were to be regarded as having been given on objection. The objection, I take it, was for the purpose of his being protected against self-incrimination. It is necessary to set out relevant portions of s 37 of the Independent Commission against Corruption Act:

"37 (1) A witness summoned to attend or appearing before the Commission 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.
…”

4 On 2 December 1992 two informations were laid against the defendant alleging breaches of s 80 (c) of the Act, which provides as follows:

"80 A person shall not:
…
(c) wilfully make any false statement to or mislead, or attempt to mislead, the Commission or an officer of the Commission in the exercise of functions under this Act."

5 On 14 December 2001 a magistrate dismissed both informations after determining that the transcript of the defendant's evidence at the ICAC hearing was inadmissible. It is common ground that, in the absence of this evidence, there would be insufficient evidence to support findings of guilt in relation to either information.

6 Before her Worship the admissibility of the evidence of the transcript was challenged on two bases: firstly, on the basis that the protection afforded to the defendant by s 37 (3) was applicable to those proceedings and, secondly, on the basis that the evidence should be excluded upon various grounds arising from provisions of the Evidence Act 1995. Her Worship determined that the evidence was inadmissible on the first basis and it is that matter only which is the subject of the proceedings before me.

7 Put shortly, the question her Worship had to decide was whether the protection afforded to the defendant by s 37 (3) was removed by subsection (4) on the basis that the proceedings before her Worship were proceedings for an offence against the ICAC Act itself. If one refers to s 80 (c) of the Act it would seem on the face of it that they were. The proceedings were upon informations alleging the wilful making of false statements to an officer of the Commission in the exercise of the functions under the Act.

8 Her Worship, in her reasons, had reference to the policy of the ICAC Act and, in particular, to the desirability of persons giving evidence on oath at Commission hearings being unconcerned to tell the truth. Her Worship referred also to the significance of the protection against self-incrimination, and had regard to some decided cases to which it is not necessary to refer for my purposes.

9 The effect of her Worship's rulings was that, for the purpose of s 37(4), the exclusion of the proceedings under s 80(c) should be confined to proceedings for an offence of making false statements on oath at a hearing before the Commission and should not extend to the offence of making false statements to an officer of the Commission outside such a hearing. Her worship was concerned, in accordance with general principles of statutory construction, to afford a generous interpretation to the protection afforded by s 37(3) and to read narrowly the removal of that protection in the circumstances provided for in subsection (4).

10 With respect, her Worship's interpretation simply cannot stand with the plain language of s 37(4)(a), which excludes from the protection afforded by subsection (3) any answer the subject of proceedings against the Act itself. The informations laid against the defendant were clearly for offences under the ICAC Act and those offences were the subject of the proceedings before her Worship. Mr Brady, who appears today for the defendant, realistically conceded that no other view is open.

11 Accordingly, I am satisfied her Worship fell into error in her reasons for excluding the transcript of the ICAC hearing and the matter must be remitted to the learned magistrate on that basis. Obviously, nothing I have said suggests any view I might have about any other basis for objection to the transcript. That has not been argued before me. Nothing I have said should have any bearing upon any factual finding which her Worship might be called on to make when the proceedings are resumed.

12 The orders I make are these:

I quash the learned magistrate's orders dismissing the two informations laid against the defendant.

I order that the two informations be remitted to the learned magistrate to be dealt with according to law.

The defendant is to pay the Director's costs but I grant him a certificate under s 6 of the Suitors Fund Act .

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Last Modified: 07/29/2002