OC v The Queen

[2016] HCATrans 26

[2016] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S178 of 2015

B e t w e e n -

OC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2016, AT 9.31 AM

Copyright in the High Court of Australia

MR N.C. HUTLEY, SC:   May it please, I appear with my learned friend, MS R.C.A. HIGGINS, for the applicant.  (instructed by Clifford Chance)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR R.A. YEZERSKI for the respondent.  (instructed by Director of Public Prosecutions (Cth))

BELL J:   Yes, Mr Hutley.

MR HUTLEY:   Your Honours, before I start, there has been an order as to confidentiality in relation to the application book, because the first instance judgment of Justice Fullerton is not anonymised, as opposed to the Court of Appeal judgment.  Her Honour made a non‑publication order in respect of her judgment, and irrespective of the fate of the application, would your Honours continue an order restricting access to the application book, at least to the extent that it identifies or is apt to identify the applicant at the end.

BELL J:   Yes.  Her Honour’s order is the non‑publication order?

MR HUTLEY:   Quite.

BELL J:   In the Court of Appeal ‑ ‑ ‑

MR HUTLEY:   It has been anonymised, so there was no need for that to occur.

BELL J:   We are not being asked to make any order.

MR HUTLEY:   I think there is a constraint on the file at the moment of some variety, preventing people from accessing it for that reason.  Just going forward, your Honour, I am just concerned that no one be able to get access to the file, irrespective of the outcome of the application.

GAGELER J:   But there is an existing restriction on access to the file?

MR HUTLEY:   So I understand, yes, but I am not sure of its duration. I just wanted to ensure that it does not, as it were, expire one way or another with whatever transpires this morning.  I do not want to take all my time talking about this, your Honour.  I just thought I should protect it.

BELL J:   It is not clear to me what you are seeking, Mr Hutley.

MR HUTLEY:   I am just seeking to ensure that your Honours direct, irrespective of the outcome of the application, that access not be got to the file in the High Court; that is all.  Anyway, I will go forward.

BELL J:   Mr Hutley, we are not disposed to make that order on the run.  If you seek to make an application, do so.

MR HUTLEY:   Thank you, your Honour.  Your Honours, the section 19 record with which this application is concerned includes statements relevant to the charge and its defence.  That appears from application book 15 at paragraph 19 of her Honour’s judgment.  There was no contest that there could be possible prejudice brought about by the course that has been preceded - that is application book 10, paragraph 32.

The principles stated in this Court in what is now known as Lee (No 2) are clear. What we submit is that their application to the provisions of the ASIC Act are not, an Act which governs much of the commercial life of this country. We would submit that there is no binary outcome when one comes to the question of the “no assistance” principle - that is, it is either wholly excluded or wholly included. It would only be set to nought to the extent which was expressly provided for or was necessarily required; only to that extent.

Turning then to the Court of Appeal’s judgment, the essential reasoning is at paragraph 119 – or the conclusion – at page 90 of the application book.  We submit that rather than leading the circumstance, particularly the structure of section 68 leading to the conclusion, which the Court of Appeal held it did, the very opposite follows with respect to any statements insofar as one is concerned with the “no assistance” principle.  Fundamental to the analysis is to concentrate on the statement and not the section 19 record because, in effect, one is concerned with the aptitude of particular statements in a section 19 statement assisting or not assisting the prosecution.

The combined effect of sections 19, 21(3), 63(3) and (5), and 68(1) is that the privilege against self‑incrimination is relevantly abolished.  However, section 68(2) and (3) demonstrate a clear intent that the abolition will not extend to the abolition or avoidance of the “no assistance” principle, because in a sense, the implication of 68(2) and (3) is that there will be no assistance to the prosecution to that extent.

BELL J:   Well, there is a use immunity, but not a derivative use immunity.

MR HUTLEY:   Quite.  One cannot infer an intent to trench upon the “no assistance” principle from 68 itself because, in effect, it is an expression, at least in part, of the affirmation of that.

GAGELER J:   Section 68 is not your only problem, is it?

MR HUTLEY:   I understand it is not my only problem, your Honour, but it is the one upon which, in effect, the Court of Appeal particularly focused, and the timing of the determination of admissibility.

GAGELER J:   I am not sure.  There is a whole bunch of sections ‑ ‑ ‑

MR HUTLEY:   I am coming to ‑ ‑ ‑

GAGELER J:   Good.

MR HUTLEY:   I understand section 76, your Honour.  I understand ‑ ‑ ‑

GAGELER J:   Section 49?

MR HUTLEY:   Section 49; I wanted to come to 49.  We say 49, properly understood, assists us in concluding that the “no infringement” principle remains relevantly unimpaired.  It is important – as, with respect, the Court of Appeal did not – to concentrate on precisely the terms of section 49, which concentrates upon a moment antecedent to the moments when the “no assistance” principle really bites.  Could I take your Honours to section 49 in that regard at this moment?  Do your Honours have section 49?

BELL J:   Yes.

MR HUTLEY:   Your Honours will see that section 49 is predicated on the existence of, as it were, a mental state within ASIC.  It says:

(1)This section applies where:

(a)as a result of an investigation; or

(b)from a record of an examination;

conducted under this Part –

and your Honours know how that comes about –

it appears to ASIC that a person:

(c)may have committed an offence against the corporations legislation; and

(d)ought to be prosecuted for the offence –

That is a state of mind which, if it exists, at that point the power under 49(2) is enlivened.  Then in effect, it says –

(2)ASIC may cause a prosecution of the person for the offence to be begun and carried on –

That causing may be through itself laying information or a charge, or causing in respect of certain indictable offences the DPP to consider doing that.  We say, and we accept for argument’s sake, that for that purpose, the DPP in making a similar decision may be able to have access to the relevant record of investigation.  But, we say, section 49 does not speak at all as to what ASIC can do with that material thereafter, and particularly not the material being the statements in the section 19 record with which the person charged is concerned.

BELL J:   Mr Hutley, as I understand it, there is a degree of common ground about section 49.  The primary judge considered that it was open to ASIC – or, as I understand it, the DPP – to have regard to the material in terms of the decision whether or not to prosecute.  In the Court of Appeal, the Chief Justice at application book 88, paragraph 107, considered that viewed in isolation, section 49 coupled with the powers generally conferred in Division 2 of Part 3 did not evince the necessary intention to exclude or alter the fundamental principles on which an adverse serial trial proceeds; so far, common ground.

MR HUTLEY:   Quite.

BELL J:   The nub of this lies, does it not, in the analysis of section 76?

MR HUTLEY:   I understand, but, your Honour, there is a point to be made about 49 which informs that analysis.  To fulfil the duty – that is, to apprehend or determine that the predicate requirement of 49 exists – one would have to subject the statements in any section 19 statement to analysis as to such matters as their tendency to incriminate, their tendency to exonerate, and the like.  In other words, the very judgments which we say are the judgments which at the end of the day, the Court of Appeal said because of the structure of 76 and 68 pointing towards a determination at the moment of tender, and therefore leading to a conclusion that there must be a full abrogation, in our respectful submission is flawed because it makes the assumption that those very determinations and assessments would not have to occur to properly determine whether the predicate circumstance in 49(1) exists itself.

BELL J:   Let us assume that the person making the determination whether or not to prosecute takes into account, as one would expect he or she might, material including the examination material.  How does the argument run that thereafter, whoever is charged with the conduct of the prosecution is not in a position to assess that material?

MR HUTLEY:   Your Honour, if one assumes they can, then one has achieved the endpoint.

BELL J:   Section 76(1) makes the material admissible in the proceeding unless ‑ ‑ ‑

MR HUTLEY:   I accept that, your Honour.

BELL J:   ‑ ‑ ‑ subject to objection, and the like.

MR HUTLEY:   I accept that, your Honour.  That is why we say one has to concentrate on particular statements, because one is concerned here not with the record, but statements.  The question is, have they been abrogated for particular types of statements?  Let us take an example of a statement which is clearly self‑incriminatory, and therefore at the time of the assessment at 49(1), it is known that it cannot ever be admitted, it cannot be.  One asks of the question, is there an evincing of an intention in this legislation with respect to statements which have that character, ex facie, an intent to assist the prosecution in affording them access to it?

BELL J:   So that in determining the essential question here, in a case in which a person objects to each question asked in the examination, it would follow on your analysis that at the point the determination is made to prosecute, the examination record is quarantined, but a different result might flow in a circumstance where a person selectively claims the privilege?

MR HUTLEY:   With respect to statements where no privilege is claimed, it is quite clear there is full abrogation, because there cannot be any circumstance which precludes admission.  There is no doubt about that.  They are tenderable.  But when one asks this question – if there is a protection intended, with respect, to statements which have a particular character, in a sense there is not to be a tendering in that sense of use ‑ ‑ ‑

BELL J:   But in divining the statutory object by reference to the scheme – sections 49, 76 and the like – it cannot depend, can it, upon whether in an individual case, a person happens to have objected to every question?

MR HUTLEY:   With respect, in our respectful submission, the structure of the legislation makes a clear division between statements in respect of which an objection is taken and statements in respect of which one is not.  In our respectful submission, it is an error.  One of the points we make, with respect to the Court of Appeal, is to assume it is common to address at the level of the record rather than the level of the statement.  One has to say there are two classes of possible statement – those in respect of which objection is taken, and those in respect of which objection is not taken.

Where an objection is taken, the legislation expressly provides protection against some use.  In other words, it has expressly determined that there will not be an abrogation of the non‑assistance principle to that extent.  One asks the question, then, does it of necessity in respect of those statements require all other aspects of the non‑assistance principle will be abrogated?  We say no.  Let us take the classic types of statements.  One has the incriminatory ones, and the exculpatory statements.  The exculpatory statements – and if one goes to section 76, which permits the tendering of statements:

A statement that a person makes at an examination of the person is admissible in evidence against the person –

That tends to indicate that what one is concerned with there is statements adverse to the person’s interests.

GAGELER J:   Yes.

MR HUTLEY:   Exculpatory statements, on the whole, do not have that characteristic, that is, statements concerning the defence you are likely to meet, exactly the sort of statement which lay at the heart of the Lee principles.  That is one of the great advantages a prosecuting authority obtains, if it can obtain access to these sorts of inquiries, is not just the inculpatory statements – it is, in effect, foreknowledge of that which the prosecution itself will never seek to tender, but will seek to use to adapt its preparation to the case under consideration.

Section 76, in its very terminology, is not contemplating that a prosecution in any real world will be tendering exculpatory material, because it is not going to happen.  That is not what this is concerned with.  It is tendering material to harm, not to help.  This is all taking place in the course of the trial, where the issue is harming.

We submit that when you read the legislation in that way and look at the section 19 statement at the outset as a statement which is likely to explore the events pertaining to the alleged commission of the offence, we are likely to have things which are inculpatory and exculpatory.  As to the former, the legislation seeks to protect their use, and as to the latter, the legislation is predicated in section 76 on an intention that it will not be used.

GAGELER J:   So all of the statements can be taken into account in determining whether or not to commence the prosecution?

MR HUTLEY:   I accept that, your Honour.

GAGELER J:   Once the prosecution has been started, then all of that information has to be put to one side?

MR HUTLEY:   No, only the statements of the accused.  That is the non‑assistance principle.  You can have all the other statements; that does not go to the non‑assistance principle.  It is our statements which are apt to have two qualities of statement – inculpatory and exculpatory.  Inculpatory are, on the legislation, not going to be tenderable ‑ ‑ ‑

BELL J:   Provided objection has been taken.

MR HUTLEY:   Provided objection is taken, and exculpatory will not be tendered because they will not be tendered under 76 because they are not against you.

BELL J:   One difficulty, Mr Hutley, is the neatness of the binary distinction you make in terms of divining a legislative intention that a statement will not be admitted against the person if it is exculpatory, you say that you have to assume that that is the legislative intention.  What 76(1) does is to make statements, including statements by a person – and we are looking here at the circumstance of a person who has not been charged with the offence, so one aspect of the principles with which we are concerned does not arise here.  But in relation to that statement, 76(1) makes it admissible subject to the exclusions that follow.

For my own part, I have some difficulty divining that one can go behind that to a notion that one can ascertain, as it were, whether a statement is favourable to the accused’s case, or unfavourable to the accused’s case, and take from that that the legislature did not intend those answers that were thought to be favourable to be admissible.

MR HUTLEY:   Your Honour, what we are submitting is that one has to, under the principles in this Court, say that there has, by necessary implication, been this infringement.

GAGELER J:   One aspect of necessary implication is surely the existence of a rational legislative scheme?  The legislative scheme, as you would have it, would be pretty close to unworkable.

MR HUTLEY:   With respect, no.  It would not trench at all upon section 19 statements of the person to which the principle does not apply.  It is only concerned with the object of the section 49 decision.  The object of that section 49 is the person to be charged.  It is that person that the prosecutor has to turn his or her or their minds as to the character of the statements as informing that decision.

GAGELER J:   The prosecutor cannot do it, as ‑ ‑ ‑

MR HUTLEY:   No, I am sorry, the determining authority – ASIC/the DPP.  I am not talking about the person who is actually conducting the prosecution.  I misspoke, as a proper future President might have said.  We say the determining authority, the body laying the charge, is in a position to make that assessment.  What we say is – if one is looking for a necessary intendment with respect to statements made by the projected accused, and that is the concentration.

BELL J:   I think we have the point.

MR HUTLEY:   That is the submission, your Honours.

BELL J:   We do not need to hear from you, Mr Solicitor.

In our opinion, there is no reason to doubt the correctness of the conclusion reached by the Court of Appeal in the matter.  Special leave is refused with costs.

MR GLEESON:   Your Honour, I think there is an agreement there would be no costs order.

BELL J:   I withdraw the latter part of the order.

MR GLEESON:   It surprises me, your Honour, but apparently I have signed a submission to that effect, so I should point it out.

BELL J:   The latter part of the order is set aside.  Special leave is refused.  Thank you.

AT 9.54 AM THE MATTER WAS CONCLUDED