OK v Australian Crime Commission

In the case of OK v Australian Crime Commission, the primary issue was whether the Australian Crime Commission (ACC) examiner could ask questions that directly related to the matters of a pending criminal charge against the applicant. The ACC argued that the Australian Crime Commission Act 2002 (ACC Act) impliedly allowed such questioning despite the charge, and that in the specific circumstances, there was no real risk that the questions would interfere with the administration of justice. The applicant, on the other hand, contended that the ACC Act did not override the fundamental principle that an accused person should not be examined by an executive body on matters directly related to a pending criminal charge unless explicitly allowed by legislation.

The court examined the provisions of the ACC Act, including sections 24A and 25A, which allow an examiner to conduct examinations and summon individuals to appear and give evidence. The court also considered the implications of section 30 of the ACC Act, which abrogates the privilege against self-incrimination by necessary implication. The court referenced previous cases such as Hammond v Commonwealth and Sorby v Commonwealth to understand the legal precedent regarding the right of an accused not to be examined on matters directly related to a pending charge by an executive arm of government. The court found that while the ACC Act did abrogate the privilege against self-incrimination, it did not necessarily imply a waiver of the right not to be questioned on matters directly related to a pending charge.

The court concluded that unless the ACC Act explicitly or by necessary implication provided to the contrary, the examiner was not entitled to ask questions that directly related to matters the subject of the charge, particularly where there was a real risk that such questioning could interfere with the administration of justice. Given the specific circumstances, the court found that there was a real risk that the questioning could prejudice the applicant’s opportunity for a fair trial. Therefore, the court issued an injunction restraining the ACC examiner from asking questions directly relating to the matters of the charge until the charge was finally determined. Additionally, the court ordered the respondent to pay the applicant's costs of the application.