DPP v Attallah

[2001] NSWCA 171

CITATION:	DPP v Attallah [2001] NSWCA 171
FILE NUMBER(S):	CA 40286/00
HEARING DATE(S):	7 June 2001
JUDGMENT DATE:	14 June 2001
PARTIES :	Director of Public Prosecutions Joseph Attallah
JUDGMENT OF:	Meagher JA at 1; Ipp AJA at 2; Fitzgerald AJA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	CLD13004/99
LOWER COURT JUDICIAL OFFICER :	Bergin J

COUNSEL:	P A Johnston SC (DPP) P G Berman SC (DPP) S. Odgers SC with M MacRossan
SOLICITORS:	S E O'Connor (DPP) Herder & Associates
CATCHWORDS:	Evidence - admissions - statutory obligation to answer questions - answers sought to be used in prosecution - use of admissions not unfair - s 87 of Independent Commission Against Corruption Act 1988 - s 90 of Evidence Act. D
LEGISLATION CITED:	Independent Commission Against Corruption Act 1988 Evidence Act 1995 Justices Act 1902
DECISION:	See paragraph 28

- 8 -1   Meagher JA: I agree with Fitzgerald AJA.

2   Ipp AJA: I agree with Fitzgerald AJA.

3   Fitzgerald AJA: The respondent (the “accused”) gave evidence at hearings before the Independent Commission Against Corruption (“ICAC”) on 23 September and 17 and 21 October 1997. In his evidence on 23 September, he denied certain matters. In his evidence on 17 October, he admitted those matters. In his evidence on 21 October, he admitted that his denials on 23 September were untrue to his knowledge at that time.

4 Section 87 of the Independent Commission Against Corruption Act 1988 (the “ICAC Act”)makes it an indictable offence for a person to give evidence at a hearing before ICAC that is, to the knowledge of the person, false or misleading in a material particular.

5 On 15 February 1999, informations were laid against the accused alleging five offences against s 87 of the ICAC Act in his evidence at the hearing before ICAC on 23 September 1997. The accused’s admissions in his evidence at the hearing before ICAC on 21 October 1997 were sufficient to establish the offences alleged in the informations.

6   On 24 August 1999, the informations came on for hearing before a magistrate at the Downing Centre Local Court.

7 The accused objected to the tender of the transcript of the ICAC hearing on 21 October 1997. The magistrate refused to admit the transcript into evidence under s 90 of the Evidence Act 1995.

8 Section 90 of the Evidence Act provides: -

“ 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 a defendant to use the evidence.”

9   Transcripts of evidence given before the ICAC hearings on 23 September and 17 October 1997 established that the accused’s evidence on the later date contradicted his evidence on the earlier date but not that his evidence on the earlier date was false or misleading to his knowledge at that time.

10   The magistrate accordingly dismissed the informations.

11 An appeal under s 104(2) of the Justices Act 1902 on the basis that the magistrate had erred in law was dismissed by Bergin J on 23 March 2000.

12 This appeal is brought by leave from Bergin J’s decision. The appellant, the Director of Public Prosecutions (NSW), (the “DPP”) seeks an order pursuant to s 109(a) of the Justices Act quashing the order of the magistrate dismissing the informations against the accused. Initially, the DPP also requested a declaration that the magistrate erred in law in rejecting the transcript of evidence of the accused’s admissions at the hearing before ICAC on 21October 1997. That declaration is no longer sought.

13   The accused filed a Notice of Contention and, at the hearing in this Court, applied for leave to cross-appeal against Bergin J’s refusal to award him his costs.

14 Section 90 of the Evidence Act requires consideration of the circumstances in which the accused’s admissions were made.

15   By virtue of subsections 37(1) and (2) of the ICAC Act, the accused was required to answer all relevant questions even though his answers would incriminate him. However, by s 37(3), his answers are inadmissible in criminal proceedings against him except as otherwise provided in s 37.

16 By s 37(4)(b), the answer of a witness is not inadmissible if he or she did not object to giving the answer unless there was no need for the witness to object by virtue of s 38 because the Commissioner or person presiding at the hearing had declared that all or any class of answers given by the witness would be regarded as having been given on objection by the witness.

17 Even if a witness has objected to answering or a declaration has been made under s 38, his or her answers are not inadmissible in proceedings for an offence against the ICAC Act by virtue of s 37(4)(a).

18 The accused accepts that his admissions at the hearing before ICAC on 21 October 1997 are not inadmissible in the proceedings against him for offences against s 87 of the ICAC Act.

19 Conversely, the DPP accepts that the magistrate had a discretion under s 90 of the Evidence Act to refuse to admit evidence of those admissions if their use against the accused in those proceedings would be unfair.

20 On each of the occasions when the accused gave evidence before ICAC, the Commissioner presiding at the hearing explained the accused’s obligation to answer questions truthfully, made a declaration under s 38 of the ICAC Act and explained the protection which the declaration gave to the accused. It is sufficient to record the explanation which the Commissioner provided on 21 October 1997. He said: -

“ … 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.
…
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 .”

21   In deciding to refuse to admit evidence of the accused’s

admissions, the magistrate said: -

“ … 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…
The circumstances in which the admissions were obtained, were…circumstances where the [accused] 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 for 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 [21 October 1997] 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 [21 October 1997] should be excluded and in the exercise of my discretion under s 90 I do exclude it .”

22   Bergin J made her order dismissing the DPP’s appeal under s 110 of the Justices Act. Her Honour held that the magistrate erred in law in concluding 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..”. However, her Honour was “satisfied that there were sufficient grounds before the Magistrate to exclude the evidence pursuant to s 90 of the Evidence Act.”

23   In explaining that conclusion, Bergin J said: -

“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.
In my view that evidence alone would have provided sufficient grounds for the magistrate to exercise her discretion to exclude the evidence.
Additionally on Day 3, when asked whether he had understood the previous explanations given to him by the Commissioner in relation to the s 38 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.
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 s 38 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.”

24   Later, her Honour found “..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 Commission that if he made the admissions he would ‘not get into trouble’ and were therefore involuntary.”

25 The accused conceded that Bergin J should not have dismissed the DPP’s appeal on the basis on which her Honour did so. Section 110 of the Justices Act does not apply and her Honour should not have made the findings on which she based her decision. Both parties accepted that, if the Court rejects the argument raised by the accused’s notice of contention, the magistrate’s order dismissing the informations should be quashed and the proceedings remitted to the Local Court for a magistrate to decide whether to refuse to admit evidence of the accused’s admissions on 21 October 1997 on the basis that it would be unfair for evidence of the admissions to be used to prove the offences with which the accused has been charged having regard to the statements made by the Commissioner at the hearing before ICAC and any effect which those statements had on the accused and any other material circumstances.

26   The argument raised by the accused’s notice of contention can be briefly summarised. The purpose (or the dominant or primary purpose, or a substantial purpose or at least a purpose) of the questions which elicited the accused’s admissions on 21 October 1997 was to obtain evidence to use against him to prove that he had committed the offences against the ICAC Act with which he was subsequently charged. The ICAC Act authorised those questions for that purpose at the hearing before ICAC on 21 October 1997 and obliged the accused to answer the questions asked for that purpose. Nonetheless, having regard to the purpose of the questions and the legal obligation on the accused to answer them, it would be unfair, or alternatively it was open to the magistrate to find that it would be unfair, to the accused for his admissions to be used to prove the offences.

27   The ICAC Act provides that evidence of the accused’s admissions at the hearing before ICAC on 21 October 1997 is not inadmissible but does not provide that it must be admitted. The Local Court had a discretion to refuse to admit the evidence under s 90 of the Evidence Act. In exercising that discretion, it was not open to the court to hold that the use of the evidence in criminal proceedings against the accused would be unfair solely because of the manner in which and the purpose for which the evidence was obtained if (as was conceded) that manner and purpose were sanctioned by parliament.

28   The appeal should be allowed, the judgment and orders of Bergin J and the Local Court should be set aside and the proceedings should be remitted to the Local Court for determination according to law. The application for leave to cross-appeal should be refused. The accused should pay the DPP’s costs before Bergin J and in this Court.