Donald Calderwood v SCI Operations
[1995] IRCA 265
•21 June 1995
CATCHWORDS
INDUSTRIAL LAW - Proceeding for an offence - defendant a corporation - whether defendant compellable to make discovery of documents - whether defendant compellable by subpoena to produce documents.
PRACTICE AND PROCEDURE - proceeding for an offence - defendant a corporation - whether defendant compellable to make discovery of documents - whether defendant compellable by subpoena to produce documents - whether rules contain "requirement" that defendant in criminal proceedings discover or produce documents - whether rule providing for directions in criminal proceedings a code.
EVIDENCE - Privilege - Self-incrimination - Self-exposure to penalty - abolition of privileges where party a corporation - whether defendant corporation compellable to make discovery of documents - whether defendant corporation compellable by subpoena to produce documents.
Industrial Relations Act 1988 s 334.
Evidence Act 1995 s 187.
Evidence (Transitional Provisions and Consequential Amendments) Act 1995 s 4(1).
Clean Waters Act 1970 (NSW) s 29(2)(a).
Crimes Act 1914 s 13(b).
Trade Practices Act 1974 ss 45, 45A.
Industrial Relations Court Rules o 10 r 2, o 15 rr 1, 2 and 13(1), o 19, o 27 rr 2 and 4, o 49.
Clarkson v. Director of Public Prosecutions [1990] V.R. 745.
Environment Protection Authority v. Caltex Refining Co. Pty. Ltd. (1993) 178 C.L.R. 477.
Lord Montague v. Dudman (1751) 2 Ves. Sen. 396., 28 E.R. 253.
Maddison v. Goldrick [1975] 1 N.S.W.L.R. 557.
Naismith v. McGovern (1953) 90 C.L.R. 336.
Noack v. General Motors-Holden's Ltd. (1985) 11 F.C.R. 122.
Sobh v. Police Force of Victoria [1994] 1 V.R. 41.
Trade Practices Commission v. Abbco Iceworks Pty. Ltd. (1994) 52 F.C.R. 96.
DONALD CALDERWOOD V. SCI OPERATIONS PTY. LTD.
NO. VI 1057 of 1995
DONALD CALDERWOOD V. SCI OPERATIONS PTY. LTD.
NO. VI 2244 of 1995
DONALD CALDERWOOD V. SCI OPERATIONS PTY. LTD.
NO. VI 2245 of 1995
DONALD CALDERWOOD V. ADIA INDUSTRIAL PTY. LTD.
NO. VI 1058 of 1995
DONALD CALDERWOOD V. ADIA INDUSTRIAL PTY. LTD.
NO. VI 2242 of 1995
DONALD CALDERWOOD V. ADIA INDUSTRIAL PTY. LTD.
NO. VI 2243 of 1995
JUDGE:GRAY J.
PLACE:MELBOURNE
DATE:21ST JUNE 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) VI No. 1057 of 1995
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
DONALD CALDERWOOD
Prosecutor
- and -
SCI OPERATIONS PTY LTD
(trading as SMORGON STEEL)
Defendant
JUDGE: GRAY J.
DATE: 21ST JUNE 1995
PLACE: MELBOURNE
MINUTE OF ORDER
The Court orders that:
The motion, notice of which was filed on 11th May 1995, is dismissed.
The defendant, on or before 12th July 1995, file and serve a list of documents verified in accordance with o.15 r.2 of the Industrial Relations Court Rules.
Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) VI No. 2244 of 1995
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
DONALD CALDERWOOD
Prosecutor
- and -
SCI OPERATIONS PTY LTD
(trading as SMORGON STEEL)
Defendant
JUDGE: GRAY J.
DATE: 21ST JUNE 1995
PLACE: MELBOURNE
MINUTE OF ORDER
The Court orders that:
The motion, notice of which was filed on 11th May 1995, is dismissed.
The defendant, on or before 12th July 1995, file and serve a list of documents verified in accordance with o.15 r.2 of the Industrial Relations Court Rules.
Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) VI No. 2245 of 1995
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
DONALD CALDERWOOD
Prosecutor
- and -
SCI OPERATIONS PTY LTD
(trading as SMORGON STEEL)
Defendant
JUDGE: GRAY J.
DATE: 21ST JUNE 1995
PLACE: MELBOURNE
MINUTE OF ORDER
The Court orders that:
The motion, notice of which was filed on 11th May 1995, is dismissed.
The defendant, on or before 12th July 1995, file and serve a list of documents verified in accordance with o.15 r.2 of the Industrial Relations Court Rules.
Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) VI No. 1058 of 1995
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
DONALD CALDERWOOD
Prosecutor
- and -
ADIA INDUSTRIAL PTY LTD
Defendant
JUDGE: GRAY J.
DATE: 21ST JUNE 1995
PLACE: MELBOURNE
MINUTE OF ORDER
The Court orders that:
The motion, notice of which was filed on 12th May 1995, is dismissed.
The defendant, on or before 12th July 1995, file and serve a list of documents verified in accordance with o.15 r.2 of the Industrial Relations Court Rules.
Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) VI No. 2242 of 1995
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N:
DONALD CALDERWOOD
Prosecutor
- and -
ADIA INDUSTRIAL PTY LTD
Defendant
JUDGE: GRAY J.
DATE: 21ST JUNE 1995
PLACE: MELBOURNE
MINUTE OF ORDER
The Court orders that:
The motion, notice of which was filed on 12th May 1995, is dismissed.
The defendant, on or before 12th July 1995, file and serve a list of documents verified in accordance with o.15 r.2 of the Industrial Relations Court Rules.
Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) VI No. 2243 of 1995
)
VICTORIA DISTRICT REGISTRY )
B E T W E E N :
DONALD CALDERWOOD
Prosecutor
- and -
ADIA INDUSTRIAL PTY LTD
Defendant
JUDGE: GRAY J.
DATE: 21ST JUNE 1995
PLACE: MELBOURNE
MINUTE OF ORDER
The Court orders that:
The motion, notice of which was filed on 12th May 1995, is dismissed.
The defendant, on or before 12th July 1995, file and serve a list of documents verified in accordance with o.15 r.2 of the Industrial Relations Court Rules.
Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
) VI No. 1057 of 1995
COURT OF AUSTRALIA ) VI No. 2244 of 1995
) VI No. 2245 of 1995
VICTORIA DISTRICT REGISTRY ) VI No. 1058 of 1995
VI No. 2242 of 1995
VI No. 2243 of 1995
B E T W E E N:
DONALD CALDERWOOD
Prosecutor
- and -
SCI OPERATIONS PTY LTD
(trading as SMORGON STEEL)
Defendant
AND
DONALD CALDERWOOD
Prosecutor
- and -
ADIA INDUSTRIAL PTY LTD
Defendant
JUDGE: Gray J.
PLACE: Melbourne
DATE: 21st June 1995
REASONS FOR JUDGMENT
In these proceedings, three informations have been laid against each of two defendants, alleging that they have committed offences under s. 334 of the Industrial Relations Act 1988 ("the Industrial Relations Act"). In each proceeding, a summons has been served on the defendant. The procedure of information and summons is required by o. 49 of the Industrial Relations Court Rules. In accordance with o. 49 r. 4, each summons appointed a date on which the defendant was to appear and answer the charge. The defendant did not plead guilty, so the hearing was one for directions.
It is unnecessary to detail the allegations made against the defendants. It is clear that the defendants are charged with criminal offences. Each defendant is a corporation.
In each proceeding, the prosecutor has served on the defendant a notice requiring the defendant to give discovery of documents. This step has been taken in reliance upon o. 15 r. 1 of the Industrial Relations Court Rules, which provides as follows:
"After a directions hearing pursuant to Order 10 and within any period limited by the Court for this purpose, any party may, unless the Court otherwise orders, by notice of discovery filed and served on any other party, require any other party to give discovery of documents."
Order 15 r. 2 specifies the obligations of a party required to give discovery. Those obligations are, within the time specified, to file and serve on the party giving the notice of discovery a list of documents relating to any matter in question and an affidavit verifying the list. Order 15 r. 11 empowers the Court to order production for inspection by another party of a document revealed by a list of documents filed by a party to be within that party's possession, custody or power. There is also a general power, found in o. 15 r. 13(1), for the Court to order a party to produce to the Court any document in the party's possession, custody or power relating to any matter in question in a proceeding.
In addition, the prosecutor has served on the defendant in each proceeding a subpoena, issued pursuant to o. 27 r. 2 of the Industrial Relations Court Rules, requiring the defendant to produce documents specified in the schedule to each subpoena. I assume that such documents as each defendant would be able to produce in answer to the subpoena would be relevant to issues which may arise in the proceeding.
The defendants have objected to each notice for discovery and have sought an order that they not be obliged to comply with it. Each defendant has also moved the Court on notice to set aside each subpoena served on it.
The defendants have sought to argue on various grounds that the provisions of o. 15 and o. 27 are inapplicable to criminal proceedings. One such argument concerns the construction of the rules. It is suggested that o. 49 is a code and that no other provision of the Industrial Relations Court Rules can apply in the case of a proceeding for an offence. This argument cannot succeed. Whilst there are many provisions of the Industrial Relations Court Rules which would be inapplicable to criminal proceedings, there are many others which are readily applicable. Order 27 is a case in point. If it were inapplicable to criminal proceedings, what authority would there be for a party to criminal proceedings to call upon the Court to issue a subpoena directed to a witness or a non-party in possession of documents required as evidence? If o. 19 were inapplicable to criminal proceedings, by what authority would the defendants in the present proceedings have moved the Court on notice? When o. 49 r. 4(2) requires the Court to give any necessary directions as to the conduct of the prosecution and defence, o. 10, which provides for what is to happen on a directions hearing, is invoked. It should be noted that o. 49 does not itself provide for the fixing or arranging of a date for the trial of a proceeding for an offence. That provision is made by o. 10 r. 2. No doubt other examples could be found of ways in which provisions of the Industrial Relations Court Rules, outside o. 49, relate readily to proceedings for offences. The provisions of o. 49 do not exclude such other provisions of the rules.
The defendants also raised arguments, but did not pursue them, concerning the adequacy of service of each subpoena. These arguments were not pursued because all parties recognised that the major issue is whether a defendant in a criminal proceeding can be compelled to produce documents relating to that proceeding. If such compulsion is permitted by the law, then directions could be given which would overcome any procedural inadequacy.
The principal argument of the defendants was that, despite the fact that the privilege against self-incrimination is no longer available to corporations, the law does not permit a defendant in a criminal proceeding to be compelled to produce documents which might be used in evidence against it in that proceeding.
There is nothing on the face of o. 15 r. 1 to show that the word "party" is to be construed as meaning only a party to a civil proceeding. Nothing on the face of o. 15 limits the application of its provisions to civil proceedings. Similarly, there is nothing in o. 27 which expressly excludes a defendant in a criminal proceeding from being a proper subject of a subpoena for production issued in relation to that proceeding. Order 27 contemplates that a subpoena may be issued by one party to a proceeding against another party to that proceeding; in r. 4, it makes specific provision for a subpoena requiring production by a person who is not a party to the proceeding in respect of which the subpoena has been issued.
Section 187 of the Evidence Act 1995 provides as follows:
"(1)This section applies if, under a law of the Commonwealth or the Australian Capital Territory or in a proceeding in a federal court or an ACT court, a body corporate is required to:
(a)answer a question or give information; or
(b)produce a document or any other thing; or
(c)do any other act whatever.
(2)The body corporate is not entitled to refuse or fail to comply with the requirement on the ground that answering the question, giving the information, producing the document or other thing or doing that other act, as the case may be, might tend to incriminate the body or make the body liable to a penalty."
That section applies to these proceedings. Section 4(1) of the Evidence (Transitional Provisions and Consequential Amendments) Act 1995 provides that a provision of the Evidence Act 1995 "does not apply in relation to proceedings the hearing of which began before the commencement of the provision." Section 187 of the Evidence Act 1995 commenced operation on 18th April 1995. The hearing of these proceedings has not yet begun.
The major argument on behalf of the defendants is that it is an overriding principle that a defendant in a criminal proceeding cannot be required to produce evidence against itself. This overriding principle is said to be independent of the privileges dealt with by s. 187 of the Evidence Act 1995, which therefore does not operate to destroy the principle. Put in another way, the argument is that, because of the overriding principle, there is no "requirement" of either o. 15 or o. 27 of the Industrial Relations Court Rules that documents be produced; in the absence of a "requirement", there is nothing on which s. 187 can operate.
Over the centuries, the common law developed two separate shields, available to people in legal proceedings generally, against compulsory disclosure of their own wrongdoing. The first is the privilege against self-incrimination. A person is entitled to refuse to answer any questions, whether in the witness box or otherwise, or to produce any document or other thing, if the answer or the production would tend to show that the person had committed a criminal offence. See Sorby v. Commonwealth (1983) 152 C.L.R. 281, at p. 288 in the judgment of Gibbs C.J. The second is the privilege against self-exposure to a penalty. A person in any legal proceedings may refuse to answer any question or to produce any document or thing on the ground that the answer or the production might tend to establish conduct on the part of that person which, even though not necessarily criminal, might result in that person incurring a penalty of some kind. See generally Pyneboard Pty. Ltd. v. Trade Practices Commission (1983) 152 C.L.R. 328. Until recently, it was assumed that both of these privileges were available to corporations in Australia. See R. v. Associated Northern Collieries (1910) 11 C.L.R. 738, Harris v. Ansett Transport Industries (Operations) Pty. Ltd. (1978) 45 F.L.R. 469, at p. 473, Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Livestock Corporation (1979) 42 F.L.R. 204, Rochfort v. Trade Practices Commission (1982) 153 C.L.R. 134, Pyneboard Pty. Ltd. v. Trade Practices Commission (above), Trade Practices Commission v. T.N.T. Management Pty. Ltd. (1984) 1 F.C.R. 172, Birrell v. Australian National Airlines Commission (1984) 1 F.C.R. 526 and Master Builders Association of New South Wales v. Plumbers and Gasfitters Employees' Union of Australia (1987) 14 F.C.R. 479. In Rochfort (above) at p. 150 and in Pyneboard (above) at pp. 346-347, Murphy J. expressed the view that the privilege against self-incrimination is a human right and should not be available to artificial persons such as corporations.
The question of the applicability of the privilege against self-incrimination to corporations came before the High Court of Australia squarely in Environment Protection Authority v. Caltex Refining Co. Pty. Ltd. (1993) 178 C.L.R. 477. That case arose from a prosecution of the respondent ("Caltex") for offences under the Clean Waters Act 1970 (NSW). While the prosecution was pending before the Land and Environment Court of New South Wales, the prosecutor served on Caltex a notice requiring the production of documents relating to the alleged offences. Such a notice was expressly permitted by s. 29(2)(a) of the Clean Waters Act 1970 (NSW). In addition, the prosecutor served a notice pursuant to the rules of the Land and Environment Court of New South Wales, requiring production of the same documents. The purpose of each notice was to obtain evidence and information for use against Caltex in the pending prosecution. Caltex was, of course, a corporation.
Caltex challenged the issue of each notice in the Land and Environment Court, which stated questions of law for the Court of Criminal Appeal to determine. The same questions came before the High Court of Australia on appeal from the order of the Court of Criminal Appeal answering them.
By a majority, the High Court held that the privilege against self-incrimination (and by implication the privilege against self-exposure to a penalty) were not available to corporations. The majority was made up of Mason C.J. and Toohey J. in a joint judgment, with separate judgments by Brennan J. and McHugh J. On the basis of that majority, the High Court answered all of the questions relating to the notice issued pursuant to s. 29(2)(a) of the Clean Waters Act 1970 (NSW) unfavourably to Caltex.
The remaining question, which was the seventh, related to the notice to produce. It was expressed in these terms, at p. 479: "7. Whether the privilege against self-incrimination extends to [Caltex] in respect of the said notice to produce." The answer given, by majority of the High Court of Australia, at p. 560, was: [Caltex] "is entitled to either the privilege against self-incrimination or the privilege against self-exposure to a penalty in respect of the said notice to produce." The majority which led to that answer was made up in this way. Deane, Dawson and Gaudron JJ., in a joint judgment, held that the privilege against self-incrimination (and by implication the privilege against self-exposure to a penalty) was available to a corporation. Brennan J., having taken the view that the privilege against self-incrimination should not be available to corporations, nevertheless took the view that the privilege against self-exposure to a penalty should be so available. His Honour took the view that the two privileges had separate historical origins and purposes, which required that they be treated differently. At p. 520, after quoting from Martin v. Treacher (1886) 16 Q.B.D. 507, his Honour said:
"Thus the Court refuses to lend its process to compel discovery on the application of a plaintiff whose action is brought merely to recover a penalty. Discovery is denied because the policy of the law requires that the Court should not give discovery at all in such an action. The Courts refused discovery to a party where discovery was sought simply to acquire proof of a criminal offence or of the opposing party's liability to a penalty......
In refusing to lend its process to compel discovery in actions to recover a civil penalty, the Court has made no distinction between corporations and natural persons. The policy which denies discovery in actions for a penalty is concerned more with the purpose for which discovery is sought than with the privilege of individual litigants. Moreover, until the present case, the significance of the distinction between the privilege against self-incrimination and the penalty privilege has not been considered. But once it is seen that the privilege against self-incrimination can be claimed only by natural persons, the distinction between exposure to a civil penalty and exposure to a criminal penalty cannot be regarded as a relevant distinction for the purpose of determining whether discovery should be ordered. So long as it was thought that corporations, no less than natural persons, could claim a privilege against self-incrimination, the distinction did not matter. But it would surely be incongruous for a court to allow discovery against a corporation in proceedings for the conviction of the corporation while refusing discovery in proceedings for a civil penalty. It would be no less incongruous to allow discovery against a corporation in proceedings for a civil penalty and deny discovery against a natural person in similar, or even the same, proceedings.
As penalties may be imposed on a corporation either in criminal or in civil proceedings and as the policy of the law leads the court to refuse to exercise its powers to compel discovery designed to procure evidence of liability to penalties, I would hold corporations exempt from an obligation to give discovery in any proceedings brought to enforce a liability to a penalty, whether criminal or civil, unless a statute or rule of court otherwise provides expressly or by necessary intendment.
Apart from proceedings brought for the purpose of discovering evidence that the opposing party is liable to conviction or a penalty, the privilege against self-incrimination or the penalty privilege may limit the exercise of other curial powers to obtain evidence. Privilege may be claimed by a party who is required to give discovery in proceedings brought for another purpose, or by a person who has been served with a subpoena and testificandum, a subpoena duces tecum or an order in the nature of a subpoena. The policy which denies discovery in proceedings of the kind mentioned limits the exercise of the court's powers to obtain evidence by discovery (whether by interrogatories or the discovery and production of documents), subpoena or order in the nature of subpoena. However, in these cases, the party or person claiming exemption on the ground of privilege is left to take the objection when called upon to perform the obligation to testify, to produce documents or to give information as the case may be."
There are two important passages in the joint judgment of Deane, Dawson and Gaudron JJ., at p. 528:
"In reality, the privilege protects a person from being compelled to produce evidence which will incriminate him, whether testimonial or not. That is clear enough in a criminal trial where an accused cannot be compelled by the prosecution to produce documents. But the immunity enjoyed by an accused in a criminal trial extends to evidence of any kind, whether incriminating or not. The immunity is, perhaps, better explained by the principle that the prosecution bears the onus of proving its case, than by the more confined principle that an accused has a privilege against self-incrimination, notwithstanding that both have a common origin.
........
But, as we have said, the immunity of an accused person from being compelled to produce documents in criminal proceedings now appears to rest more upon the principle that the prosecution bears the burden of proof than upon the privilege against self-incrimination, even though the burden of proof has its beginnings in the same aversion to inquisitorial proceedings which gave birth to the maxim nemo tenetur seipsum prodere."
On the basis of these passages, and of the answer given by the High Court of Australia to question 7, the defendants in the present proceedings argue for the continued existence of an overriding principle that a Court will not allow its procedures to be used for the purpose of procuring evidence from a defendant in a pending criminal case. In other words, they contend that the rule which protected defendants from being forced to give discovery in criminal proceedings was based not solely on the privilege against self-incrimination, but on a separate and surviving reluctance of the Courts to assist prosecutors to discharge their onus.
The reasoning in Environment Protection Authority v. Caltex Refining Co. Pty. Ltd. (above) was examined closely by a Full Court of five judges in the Federal Court of Australia in Trade Practices Commission v. Abbco Iceworks Pty. Ltd. (1994) 52 F.C.R. 96. The case concerned a proceeding to recover civil penalties, pursuant to ss. 45 and 45A of the Trade Practices Act 1974. The issue was whether the rules of the Federal Court of Australia permitted the service by the applicant of notices to produce documents directed to the respondent in such a proceeding. By a majority of four to one, the Federal Court held that such notices were permitted. The leading judgment is that of Burchett J., with whom Black C.J. and Davies J. concurred.
On the issue of the precedent value of the Caltex case, particularly the answer to question 7, Burchett J. had this to say, at p. 111:
"Nor is there a ratio decidendi common to the majority in Caltex which provides a binding rule by the application of which this case could be decided. Three of the majority (Mason CJ, Toohey and McHugh JJ) gave utterance to obiter dicta affirming that the privilege against self-exposure to a penalty was no more available to a corporation than (as the majority of the Court held) was the privilege against self-incrimination. But the fourth member of the majority (Brennan J) took the contrary view, and in his case, his view cannot be seen as an obiter dictum because it formed the basis of his judgment on one of the substantial issues in the case. However, he was alone in expressing that view, although it enabled him to join with the minority on the principal question (Deane, Dawson and Gaudron JJ) in answering (but not directly) the further question "(w)hether the privilege against self-incrimination extends to [the respondent] in respect of the said notice to produce". Their answer held the Caltex company "entitled to either the privilege against self-incrimination or the privilege against self-exposure to a penalty in respect of the said notice to produce". But the very terms of this answer make it clear that it cannot provide a precedent binding this Court to hold, in a case where self-incrimination is not in issue, that a corporation can rely upon the privilege against self-exposure to a penalty in respect of a notice to produce. Even if that were not so, the quite different reasons given by Brennan J, on the one hand, and Deane, Dawson and Gaudron JJ on the other, would require the conclusion that the decision on the point in question lacks a ratio decidendi. Only the decision itself would be binding, in indistinguishable circumstances."
Counsel for the defendants in the present proceedings contended that they involve circumstances indistinguishable from those giving rise to question 7 in Caltex. It is true that they do involve the invocation of procedures of the Court designed to compel the production of documents by defendants in criminal proceedings, as was the case in Caltex. It is untrue, however, in that neither the privilege against self-incrimination, nor the privilege against self-exposure to a penalty is in issue, both having been abolished in respect of corporations, if not by s. 187 of the Evidence Act 1995, then by the combined authority of Caltex and Abbco.
Both Burchett J. and Gummow J., who delivered a separate judgment in Abbco, held that there was no principle, independent of privilege, motivating a Court to decline the use of its procedures to compel production of documents by a party sued for a penalty. At pp. 117-118, after quoting from the judgment of McHugh J. in Caltex, Burchett J. said:
"The accuracy, as a matter of history, of the view accepted by McHugh J. that the privilege against self-exposure to a penalty "was not invented by the Court of Chancery", its origin being in the common law, was strongly attacked at the hearing before us, with a wealth of citation of ancient authority. However, the point does not seem to me to be significant. Even if the privilege was in fact invented by the Court of Chancery, or if its origin is uncertain, it is plain from the citation which McHugh J. makes from a judgment of Lord Hardwicke, and other judgments of that eminent Lord Chancellor are to like effect, that the development of the privilege into its mature form proceeded upon precisely the same principles as the development of the privilege against self-incrimination. The two marched in step and, as I shall show, were often, perhaps usually, treated as one. To the extent that an aversion to actions by common informers may have contributed to the growth of the equitable doctrine, leading Courts of Chancery to restrict discovery proceedings, it should be said that this is hardly a basis upon which a modern court would ground a refusal to countenance assisting an action brought to recover a penalty imposed by the Parliament in the pursuit of national economic policies of high importance - particularly where such an action may only be maintained by the Minister or the Trade Practices Commission."
Further, at p. 119, Burchett said:
"Brennan J takes the view that the privilege against discovery or production of documents on the ground of self-exposure to a penalty is a quite separate privilege, peculiarly concerned (in a way that the other is not) with the Court's pursuit of its own procedures. He states (at 520):
"Thus the court refuses to lend its process to compel discovery on the application of a plaintiff whose action is brought merely to recover a penalty ... Discovery is denied because the policy of the law requires that the court should not give discovery at all in such an action."
But why should that be the policy of the law? Lord Hardwicke treated it as in substance the same policy which underlay the privilege against self-incrimination. If that were so, it would be difficult to see why the one privilege should be available to a corporation when the other is not. However, Lord Esher, in the passage cited by Brennan J, says the rule against self-incrimination "has really nothing to do with" the rules relating to penalties and forfeitures. Later in these reasons, I shall endeavour to show that Lord Esher is simply wrong."
The reference was to a passage from the judgment of Lord Esher M.R. in Mexborough (Earl of) v. Whitwood Urban District Council [1897] 2 Q.B. 111, at p. 115.
After examining the authorities in detail, Burchett J. said, at p. 129:
"My conclusion from the survey made in these reasons of texts and authorities since the 18th century is that the privilege against self-incrimination, and that against self-exposure to a penalty, are both reflections of the one fundamental principle. It has been stated in various ways, and with differing emphases. But, with respect, it cannot be better expressed than by the words which Deane, Dawson and Gaudron JJ used in Caltex (at 532) with reference to self-incrimination:
"In the end, [the privilege] is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself".
Substituting "the incurring of a penalty" for "the commission of a crime" and "the defendant" for "the accused", I think this statement applies to the privilege against self-exposure to a penalty. So applied, the principle may evoke less feeling, but it remains the same principle. It is therefore wrong to regard the two grounds or aspects of privilege as depending on unrelated or different considerations. They should not be seen as separate props in the structure of justice, but rather as interlocking parts of a single column."
His Honour then went on to say, at pp. 129-130:
"Once given that a corporation cannot claim the benefit of the privilege against self-incrimination, there is no sound reason why a proper authority, suing a corporation for a civil penalty, should not have the assistance ordinarily given to a litigant in the Court with respect to discovery and production of documents - assistance generally thought to be in the interests of justice."
At p. 130, Gummow J. expressed his agreement with what Burchett J. said about the doctrines of stare decisis and ratio decidendi. At pp. 134-135, his Honour expressed agreement with the analysis by Burchett J. of what was said by Lord Esher M.R. in Mexborough. At pp. 145-146, Gummow J. said:
"Further, the privilege against discovery or production of documents or provision of information in a proceeding for the imposition and recovery of a civil penalty, shares with that branch of the privilege against self-incrimination concerned with protection from compulsion to produce books or documents in the nature of real evidence of guilt, a significant characteristic. This is that both rest upon weaker ground than that which supports the privilege against self-incrimination by compulsion to make an admission of guilt which is testimonial in character. If the corporation, even as a party, is denied the privilege against self-incrimination by compulsion to produce books or documents, what additional rationale preserves, in respect of corporations, the cognate penalty privilege? If the balance between state and corporation now, as we must accept, favours denial of the privilege in the first category of case, why should a different balance be struck in the second category?"
The reasoning of the majority of the Full Court in Abbco is clearly inconsistent with the view that the earlier refusal to compel production of documents, in the course of a pending proceeding to recover a civil penalty, was based on some ground independent of the privilege against self-exposure to a penalty. Had the answer to question 7 in Caltex been supportable on the basis that there was some separate rule that a Court would not lend its aid to a prosecution, the Federal Court would have been bound to apply that rule. The Federal Court clearly took the view that that answer was not so supportable and that no such separate rule existed. By parity of reasoning, no such separate rule exists in criminal proceedings.
Counsel for the defendants relied on Noack v. General Motors-Holden's Ltd. (1985) 11 F.C.R. 122. In that case, Forster J. held that discovery of documents was not available against a prosecutor in criminal proceedings. His Honour referred to "a long line of authority" to the effect that discovery of documents was not available at all in criminal proceedings. His Honour cited only three cases from this line of authority, none of which dealt directly with discovery of documents in a criminal proceeding. The first was Lord Montague v. Dudman (1751) 2 Ves. Sen. 396., 28 E.R. 253, in which the Court of Chancery refused a bill of discovery in which documents were sought which might have aided the defence to an application for mandamus. The second was Naismith v. McGovern (1953) 90 C.L.R. 336, in which the High Court of Australia was dealing with a civil action for the recovery of a penalty. The third was Maddison v. Goldrick [1975] 1 N.S.W.L.R. 557, in which the Supreme Court of New South Wales was dealing with a summons to review an order of a magistrate who had compelled the production of the police "brief" during a committal proceeding and ordered that counsel for the accused have access to it. The references to the unavailability of discovery of documents in all of these cases were not strictly necessary to the reasoning, although that alleged unavailability was used as the basis of the reasoning in each case. The Appeal Division of the Supreme Court of Victoria did hold that an application for discovery of documents, made by an accused person in criminal proceedings against the prosecutor, must be refused in Clarkson v. Director of Public Prosecutions [1990] V.R. 745, at pp. 757-761.
The authorities on the subject of discovery of documents in criminal proceedings were the subject of close examination by the Appeal Division of the Supreme Court of Victoria in Sobh v. Police Force of Victoria [1994] 1 V.R. 41. At pp. 41-42, Brooking J. said:
"Neither the Crown nor the accused has the right to obtain production by the other for inspection of all documents relevant to the issues arising on a criminal trial. The exemption of the accused from any process of discovery is absolute. It flows from the privilege against self-incrimination: R. v. Mead (1703) 2 Ld. Raym. 927;92 E.R. 119; R. v. Purnell (1748) 1 Wils. 239; 95 E.R. 595; also reported 1 Wm. Bl. 37; 96 E.R. 20; R. v. Adams [1965] V.R. 563, at p. 565. Unless he gives sworn evidence in his defence, in which case he can be compelled to produce all relevant documents in his custody or under his control (R. v. Adams, at p. 565), the accused will not be required to discover any document. Hence the failure of the Crown's application at the trial for an order that the accused produce a document for inspection in R. v. Naramatsu Hamiguchi [1908] St. R. Qd. 224. It was also laid down at an early stage that an accused person could not himself obtain discovery against the Crown: R. v. Holland (1792) 4 Term. Rep. 691; 100 E.R. 1248."
At pp. 45-46, his Honour said:
"The fact is that the refusal to recognise a right to discovery in criminal cases has historically two explanations, one relating to what might be called dry questions of practice and procedure and the other to considerations of policy. As regards practice and procedure, before the legislative changes of the mid-nineteenth century, it was only the Court of Chancery that could order general discovery, and ever since Lord Montague v. Dudman (1751) 2 Ves. Sen. 396.; 28 E.R. 253, it has been accepted that a bill of discovery would not be allowed to aid either the prosecution or the defence of a criminal charge. This decision was founded, not upon considerations of public policy, but upon the absence of any precedent for the use of a bill of discovery as auxiliary to criminal proceedings. In the result attempts to obtain discovery could be made only by invoking the practice of the Court of King's Bench of granting discovery of public documents in certain cases. These attempts failed from the outset in so far as they sought to obtain documents in aid of a prosecution, and they failed here because of the principle that the defendant to a criminal prosecution could not be ordered to produce evidence against himself."
The Appeal Division recognised the continued existence of a rule that an accused person has no right to obtain discovery from a prosecutor, whilst doubting the existence of any rationale for it. See Brooking J. at pp. 45-46 and 47-48 and Ashley J. at pp. 66-67 and 68. It may be that the decision in Noack would require re-examination in the light of the discussion in Sobh, and that the rules relating to the withholding of documents on grounds of public interest immunity would now make a better basis for the consideration of access by an accused person to documents in the possession or power of the prosecutor than does a blanket rule that discovery is unavailable. In the passages which I have quoted, Brooking J. clearly did not regard the absence of a right to discovery against an accused person as based on anything more than the privilege against self-incrimination.
There is no authority directly in point. Since Caltex and the enactment of s. 187 of the Evidence Act 1995, no Court has decided whether there is any surviving rule that a Court's processes to compel the production of documents are available or unavailable to a prosecutor in criminal proceedings. To the extent to which there is authority, it is in Abbco, which deals with the civil proceeding for recovery of penalties.
I am of the view that I should follow the reasoning in Abbco. I do not accept that it is distinguishable from the High Court's answer to question 7 in Caltex. Nor do I accept that Abbco is incorrectly decided in the light of Caltex. Abbco stands for the proposition that, in the absence of a privilege protecting a party, provisions in the rules of a Court under which the production of documents by that party can be compelled are applicable. In terms of s. 187 of the Evidence Act 1995, there are in o. 15 and o. 27 of the Industrial Relations Court Rules provisions requiring the defendants to produce documents. Those requirements must be obeyed.
To the extent to which a policy choice is available, it leads me to the same conclusion. In the words of McHugh J. in Caltex, at pp. 554-555:
"Corporate conduct is often complex. Assessment of a corporation's conduct may only be possible through an examination of its documents. This is particularly so in cases where the alleged wrong is committed as a result of the failure of a system set up by a corporation. A true understanding of the corporation's procedures is likely to be gained only through evidence from the corporation itself, particularly from its records. The difficulty in obtaining independent evidence against corporations is sometimes exacerbated by the inability to identify a victim of corporate behaviour who can testify. Often, the victim is an "amorphous entity such as a market". Furthermore, corporations are often well equipped to cover up their activities and to fund their defences. To deprive the corporation's opponent - whether it is the Crown or a private litigant - of evidence which will assist that party's case is a high price for the administration of justice to pay in return for securing the integrity of the adversary system of justice. Corporate behaviour, moreover, has enormous social impact, a factor recognized in the United States cases."
At pp. 555-556, McHugh J. made specific reference to criminal cases:
"Similarly, a strong case can be made in favour of the conclusion that the privilege should not be exercisable by a corporation so as to prevent the prosecution obtaining, by subpoena, documents which are relevant to the issues in criminal proceedings. The documents exist. They can be obtained by search warrant. If they are relevant to an offence, they cannot be altered or destroyed because to alter or destroy them would constitute the offence of attempting to pervert the course of justice. Why then should this evidence be allowed to remain hidden in the files of the corporation when it is relevant to an issue to be tried in criminal proceedings? It is difficult to see how the administration of justice, even under the adversary system of criminal justice can be advanced by allowing a corporation to refuse to produce documents on subpoena simply because the documents tend to incriminate the corporation. If a corporation can refuse to produce documents, the public interest in detecting and punishing crime is diminished so that the integrity of the adversary system can be maintained for the benefit of an artificial entity. This is much too high a price to pay for allowing corporations to claim the privilege."
Counsel for the defendants in the present proceedings pressed on me the view of Deane, Dawson and Gaudron JJ. in the passages I have quoted above. In those passages, their Honours attempted to rest the immunity of an accused corporation on the prosecutor's obligation to carry the burden of proof, rather than on the privilege against self-incrimination, although their Honours acknowledged the "common origin" of the two principles. I confess to having some difficulty understanding this reasoning. The onus of proof will continue to rest on the prosecution (where it does so) in criminal cases. What is of concern in these proceedings is the source of the evidence which might be relied upon to discharge that onus. In the case of a corporation, from which the privileges against self-incrimination and self-exposure to a penalty have been removed, there is no particular reason why a prosecutor should not be able to use evidence supplied directly by the corporation to discharge the onus.
In any event, the considerations relating to the onus of proof are weakened in relation to offences under s. 334 of the Industrial Relations Act, sub-s. (6) of which casts on the defendant the onus of proof in relation to a most important issue. The interests of justice are best served by a prosecutor being able to obtain discovery of documents, at least so as to be aware of the evidence on which the defendant proposes to discharge that onus.
I have considered whether the availability of the machinery to compel production of documents in criminal cases might not encourage the institution of criminal proceedings as a means of obtaining documents. I am aware that s. 13(b) of the Crimes Act 1914 permits any person to institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. The prosecutor in the present cases has availed himself of that provision. The same fear might arise in civil proceedings. In each case, Courts have ample powers to prevent abuses of their process. There has been no suggestion that the prosecutions in the present cases are anything other than in good faith.
For these reasons, I propose to dismiss the motion of the defendant in each of the proceedings, seeking to set aside the subpoena in that proceeding. To avoid any procedural difficulties, I propose to make an order that each defendant file and serve a list of documents, verified by affidavit, in accordance with o. 15 r. 2 of the Industrial Relations Court Rules. I shall allow 21 days for the filing and service of that list.
Counsel for the prosecutor: Mr. A. Watson.
Solicitors for the prosecutor: Holding Redlich.
Counsel for the defendant
SCI Operations Pty. Ltd.: Mr. N. Green.
Solicitors for the defendant
SCI Operations Pty. Ltd.: Blake Dawson Waldron.
Counsel for the prosecutor: Mr. A. Watson.
Solicitors for the prosecutor: Holding Redlich.
Counsel for the defendant
ADIA Industrial Pty. Ltd.: Mr. T. Ginnane.
Solicitors for the defendant
ADIA Industrial Pty. Ltd.: Dunhill Madden Butler.
Date of Hearing: 16th May 1995
Date of Judgment: 21st June 1995
I certify that this and the preceding twenty-four (24) pages are a true copy of the reasons for judgment of his Honour Justice Gray
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