Ollis v New South Wales Crime Commission - [2007] NSWCA 311

No judgment structure available for this case.

Reported Decision: 177 A Crin R 306

New South Wales

Court of Appeal

CITATION: Ollis v New South Wales Crime Commission [2007] NSWCA 311
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2 April 2007

JUDGMENT DATE:
2 November 2007

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 88; Tobias JA at 104

DECISION: 1. Extend the time in which to file the Summons for Leave to Appeal to 4 October 2006; 2. Grant leave to appeal; 3. Appeal allowed; 4. Set aside orders made by Rothman J on 7 June 2006; 5. Dismiss the Notice of Motion for summary judgment; 6. The respondent is to pay the appellant’s costs of the Summons for Leave to Appeal, the appeal and the costs at first instance.

CATCHWORDS: CRIMINAL LAW – statutory construction – criminal conduct may constitute more than one offence – s 6(2)(d) of the Criminal Assets Recovery Act 1990 (NSW) does not refer to specific offences but categories of offences – perjury may satisfy the concept of perverting the course of justice – failure to establish defendant made false statement with intent to pervert course of justice – real question to be tried – error in ordering summary judgment - EVIDENCE – witness immunity – exceptions – statements made in the course of judicial proceedings – immunity otherwise applicable – whether Criminal Assets Recovery Act 1990 (NSW) provided an exception to the immunity – application under the Act not typical civil suit or criminal prosecution – intention of legislature – Act concerned with conduct not liability or potential liability to punishment - PROCEDURE – summary judgment – r 13.1 Uniform Civil Procedure Rules 2005 (NSW) – inappropriate where real question to be tried - PROCEDURE – application for summary judgment – defendant did not adduce evidence on application – trial judge made adverse credit finding and drew Jones v Dunkel inference from failure to call witness – whether trial judge’s reasoning was consistent with principles governing summary judgment

LEGISLATION CITED: Crimes Act 1900 (NSW) ss 178BB, 312, 319, 327, 330, 338
Criminal Assets Recovery Act 1990 (NSW) ss 5, 7,10, 12, 16A, 16B, 22, 24, 27, 28, 31
Uniform Civil Procedure Rules 2005 (NSW) r 13.1

CASES CITED: Air Services Australia v Zarb (NSWCA, 26 August 1998, unreported)
Butler v Attorney General for the State of Victoria (1961) 106 CLR 268; [1961] HCA 32
Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41
Clarkson v R [2007] NSWCCA 70
D’Orta-Ekanaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Dawkins v Lord Rokeby (1873) LR 8 QB 255
Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1
Evans v London Hospital Medical College (University of London) [1981] 1 All ER 715
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; [1964] HCA 69
Hargreaves v Bretherton [1959] 1 QB 45
Henderson v Broomhead (1859) 4 H & N 569; [1859] 157 ER 964
Jamieson and Brugmans v R (1993) 177 CLR 574; [1993] HCA 48
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Meadow v General Medical Council [2007] QB 462; [2006] EWCA Civ 1390
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 91
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659
R v Jurca (1986) 6 NSWLR 491
R v Skinner (1772) Lofft 54; (1772) 98 ER 529
Taylor & Anor v Director of the Serious Fraud Office & Ors [1999] 2 AC 177
The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25
Webster & Anor v Lampard (1993) 177 CLR 598; [1993] HCA 57

PARTIES: Victor Warren Ollis (Appellant)
New South Wales Crime Commission (Respondent)

FILE NUMBER(S): CA 40404/06

COUNSEL: C J Dibb (Appellants)
I Temby QC; P Singleton (Respondent)

SOLICITORS: Darryl Barlow & Co (Appellants)
New South Wales Crime Commission (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 10278/06

LOWER COURT JUDICIAL OFFICER: Rothman J

LOWER COURT DATE OF DECISION: 7 June 2006

- 1 -

CA 40404/06
BEAZLEY JA
HODGSON JA
TOBIAS JA

2 November 2007

Victor Warren Ollis v New South Wales Crime Commission

Headnote

Upon application of the New South Wales Crime Commission (the Commission), Sully J, pursuant to s 10 of the Criminal Assets Recovery Act 1990 (NSW) (the Criminal Assets Recovery Act), made an ex parte restraining order in respect of any interest in property of the claimant, Ollis. Subsequently, the Commission applied for an order under s 27 of the Criminal Assets Recovery Act for a proceeds assessment order. The Commission sought summary judgment of that application.

The basis for the making of the proceeds assessment order was that Ollis had engaged in a serious crime related activity, namely, perverting the course of justice, within six years before the making of the application, being conduct that constituted an offence under s 319 of the Crimes Act 1900 (NSW) (the Crimes Act). The conduct upon which the Commission relied was the swearing of two false affidavits in the Wollongong Local Court. Ollis falsely stated he could not pay a judgment debt of approximately $40,000 in circumstances where it was established he had sufficient assets to pay. The Commission also alleged that Ollis’ conduct constituted an offence under s 178BB of the Crimes Act.

In an examination conducted pursuant to s 12 of the Criminal Assets Recovery Act, Ollis stated he did not have any intent to pervert the course of justice or commit perjury. He said he signed the affidavits without reading them but assumed they were correct as his solicitor prepared them. He said he did not know where his solicitor obtained the false financial information. Ollis did not give evidence before Rothman J but the transcript of the s 12 examination was in evidence.

Rothman J gave judgment in which he held the preconditions for the making of a proceeds assessment order were satisfied. His Honour ordered that summary judgment be given for the Commission for an amount to be assessed by the Court. Ollis appealed from the decision of Rothman J.

Did his Honour wrongly draw a Jones v Dunkel inference from Ollis’ failure to call his solicitor and wrongly reject Ollis’ evidence?

Uniform Civil Procedure Rules

Dey v Victorian Railway Commissioners

General Steel Industries Inc v Commissioner for Railways (NSW) & Ors

Webster & Anor v Lampard

Air Services Australia v Zarb

(2) Whilst his Honour could have been sceptical as to Ollis’ evidence given in the s 12 examination, it was a significant step to make an adverse credit finding on the transcript evidence and then to reach a conclusion by a process of inferential reasoning supported by a Jones v Dunkel inference on such evidence. The fact that his Honour engaged in that process of reasoning indicated he did not deal with the application in accordance with the principles that govern summary disposal of proceedings: [34]
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Was Ollis entitled to the benefit of witness immunity?

R v Skinner

Cabassi v Vila

Hargreaves v Bretherton

R v Jurca

Jamieson and Brugmans v R

Evans v London Hospital Medical College (University of London)

Taylor & Anor v Director of the Serious Fraud Office & Ors

Meadow v General Medical Council

(5) Ollis’ affidavit upon which the Commission relied was clearly within the category of material to which the immunity extended if it was otherwise applicable: [49]

Criminal Assets Recovery Act

(7) Even accepting that Ollis’ conduct included all the elements specified in s 178BB of the Crimes Act , it could not be considered as being an offence that was punishable by imprisonment for 5 years or more, because witness immunity meant that it was not punishable at all: [99]

Criminal Assets Recovery Act

Jamieson and Brugmans v R

Crimes Act

Could the Commission rely upon the offence of perverting the course of justice?

Butler v Attorney General for the State of Victoria

Pearce v The Queen

Clarkson v R

(11) Section 6(2)(d) of the Criminal Assets Recovery Act does not refer to specific offences as such but refers to an offence that involves each of the specified categories of an offence. If perjury was committed in circumstances where the falsehood was told in order to pervert the course of justice, that would satisfy the concept of perverting the course of justice within the meaning of s 6(2)(d): [73]-[74]

IN THE SUPREME COURT

CA 40404/06

BEAZLEY JA
HODGSON JA
TOBIAS JA
2 November 2007

Victor Warren Ollis v New South Wales Crime Commission

Judgment

1 BEAZLEY JA:

Introduction

2 On 19 January 2006, the Supreme Court, pursuant to s 10 of the Criminal Assets Recovery Act 1990 (NSW) (the Act) made a restraining order against any interest in property (within the meaning of “interest in property” as defined in s 7 of the Act) of the claimant (Ollis) including the interest in property described in Schedules 1-5 to the order.

3 The order was made ex parte by Sully J upon the application of the New South Wales Crime Commission (the Commission) and was based upon the evidence contained in the affidavit of Jonathan Lee Spark, Assistant Director, Financial Investigations with the Commission, in accordance with s 10 of the Act.

4 At the same time, restraining orders were made in respect of certain property of Gail Ann Shields (Shields) and other parties and companies associated with Shields. Shields and those other parties have sought leave to appeal against the restraining orders made in respect of their property: CA 40270/06.

5 Subsequently, the Commission applied to the Court for an order under s 27 of the Act that Ollis be subject to a proceeds assessment order requiring him to pay an amount assessed as the value of the proceeds derived by him from illegal activities. The Commission sought summary judgment of that application.

6 On 18 April 2006, Rothman J gave judgment in which he held the preconditions for the making of a proceeds assessment order had been made out and that he proposed to make the orders sought by the Commission in its Notice of Motion for summary judgment. Subsequently, on 7 June 2006, his Honour made an order pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) that judgment be given for the Commission on its claim for a proceeds assessment order against Ollis for an amount to be assessed by the Court.

7 The basis for the making of the proceeds assessment order was that Ollis had engaged in serious crime related activity within the six years before the making of the application for the order, being conduct that constituted an offence under s 319 of the Crimes Act 1900 (NSW) (the Crimes Act). Ollis seeks leave to appeal from his Honour’s order.

8 Assets forfeiture orders pursuant to s 22 of the Act have also been made in respect of the property of Shields and the other claimants. Those parties have sought leave to appeal from the making of those orders: CA 40435/06.

9 The three summonses for leave to appeal were heard together on the basis that the summonses for leave to appeal and the appeals be heard concurrently. Accordingly, these reasons should be read in conjunction with any reasons in appeal proceedings CA 40270/06 and CA 40435/06.

The statutory scheme

10 The statutory scheme is considered in detail in my reasons in CA 40270/06. Relevant for present purposes are the provisions of s 27 of the Act, which provides for the making of a proceeds assessment order. Such an application is not a criminal proceeding (see s 5).

“27 Making of proceeds assessment order

(1) The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2) …

(a) a serious crime related activity involving an indictable quantity, or

(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.

…

(5) The quashing or setting aside of a conviction for a serious crime related activity does not affect the validity of a proceeds assessment order.

(6) The making of a proceeds assessment order does not prevent the making under Division 1 of an assets forfeiture order based on the serious crime related activity, or on all or any of the serious crime related activities, in relation to which the proceeds assessment order is made.

(7) The amount a person is required to pay under a proceeds assessment order is a debt payable by the person to the Crown on the making of the order and is recoverable as such.

…

(9) The net amount recovered under a proceeds assessment order is to be paid to the Treasurer and credited to the Proceeds Account.

(10) Notice of an application under this section is to be given to the person against whom the order is sought and any other person required by the regulations to be given notice.

(11) The absence of a person entitled to be given notice of a proceeds assessment order does not prevent the Court from making the order.

“28 Assessment of proceeds of serious crime related activity

(1) For the purpose of making an assessment under section 27 in relation to the proceeds derived by a person (in this section called the defendant ) from an illegal activity, or illegal activities, of the person or another person the Supreme Court is to have regard to the following matters:

(d) the value of the defendant’s property before and after the illegal activity or each illegal activity,

(e) the defendant’s income and expenditure before and after the illegal activity or activities.

(2) If evidence is given at the hearing of an application for a proceeds assessment order that the value of the defendant’s property after an illegal activity or illegal activities of the defendant exceeded the value of the defendant’s property before the activity or activities, the Supreme Court is to treat the excess as proceeds derived by the defendant from the activity or activities, except to the extent (if any) that the Supreme Court is satisfied the excess was due to causes unrelated to an illegal activity or activities.

Section 31(1) provides that all interests of the person against whom the order is made, where the amount assessed remained unpaid, are charged in favour of the Crown to the extent necessary to secure payment of the assessed amount.

Jurisdictional basis for making the s 27 order

11 The conduct upon which the Commission relied as constituting serious crime related activity engaged in not more than six years before the making of the application was the swearing of two false affidavits by Ollis in the Wollongong Local Court on 16 December 2005.

12 Ollis falsely stated in those affidavits that he could not or was not able to raise the amount of a judgment debt in the sum of approximately $40,000, in circumstances where it was established that in the preceding month he had lent $4.5m to one person and a further $3m to another. The other falsity was Ollis’ failure to disclose that at the time of swearing the affidavit, he had a further $7.5m worth of undisclosed assets. The two affidavits were sworn in support of an application made by Ollis in the Local Court to pay a judgment debt of $40,000 by instalments of at least $1,000 per month.

13 The Commission alleged that Ollis’ conduct in swearing the false affidavits constituted an offence under s 178BB of the Crimes Act of: with intent, obtaining a financial advantage by making a statement which the person knows to be false or misleading in a material particular, or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or false, or misleading. The offence is punishable by a term of imprisonment for five years.

14 Rothman J held that each of the statements was false and was made by Ollis with the intent to obtain a financial advantage for himself, namely, the payment of the judgment debt by instalments. His Honour held that such an offence was an offence involving fraud or dishonesty: see Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 where Abadee J held that an offence under s 178BB of the Crimes Act was an “offence involving fraud or dishonesty” within the meaning of s 227(2)(b) of the Companies (New South Wales) Code.

15 Rothman J, therefore, held that the conditions precedent for the making of an order under s 27 of the Act were made out, subject to the argument raised by Ollis that as the false statements were made by him as a witness in proceedings, he was entitled to the benefit of immunity from prosecution. The submission made to his Honour was that if Ollis could not be found guilty of the offence and thereby not be punished, conduct which otherwise might constitute the ingredients of the offence cannot be the basis of an order under s 27(2). The same argument, in essence, was advanced before this Court.

16 The Commission, alternatively, submitted to Rothman J that Ollis’ conduct in swearing the false affidavits was a serious crime related activity in that it constituted the offence of perverting the course of justice or attempting to do so in contravention of s 319 of the Crimes Act. Section 319 provides that a person who does any act or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.

17 His Honour at [44] rejected the submission put on behalf of Ollis that his conduct did not constitute a serious crime related activity because he was entitled to immunity. His Honour held that immunity does not apply to the Act. It followed that the preconditions for the making of an order under s 27 of the Act were satisfied.

18 Rothman J also held it had been established on the evidence that it was more probable than not that Ollis had engaged in conduct which was a contravention of s 319 of the Crimes Act, so that the preconditions for the making of an order under s 27 of the Act in reliance on that conduct were also satisfied.

19 I will return to the evidence to which his Honour referred shortly.

20 Ollis had also argued before his Honour that it was not open to the Commission to rely upon the provisions of s 319 of the Crimes Act because Ollis’ conduct in swearing the false affidavits, if proved, constituted the offence of perjury under s 327. Section 327 provides that a person who in, or in connection with, a judicial proceeding, makes a false statement on oath concerning a material matter knowing the statement to be false, or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years. Rothman J rejected this argument on the basis that the same conduct may constitute different offences.

21 It is relevant to note that the moneys in respect of which the Commission is seeking a proceeds assessment order is not, or at least, is not only, the financial advantage obtained by swearing the false affidavits, but are also the moneys obtained by virtue of the transactions on the Westpac Bank Accounts.

Issues on the appeal

22 Ollis contended that Rothman J erred in the following respects. First, that his Honour wrongly drew a Jones v Dunkel inference from the fact that Ollis did not adduce evidence on the motion: see Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. It was submitted that such an inference should not have been drawn, because his Honour was dealing with an application for summary judgment and it would not be expected that a respondent to such application would give evidence. Secondly, that his Honour rejected certain evidence of Ollis given before the Registrar on an examination under s 12 of the Act. It was submitted that his Honour should not have done so and that if there were factual issues to be tried, his Honour should not have made an order entering summary judgment for the Commission. Thirdly, that his Honour wrongly held that witness immunity did not apply. Fourthly, his Honour wrongly found that it had been established that Ollis’ conduct constituted the offence of perverting the course of justice contrary to s 319 in circumstances where it had not been established that Ollis had the intention to pervert the course of justice. Fifthly, that the offences of perverting the course of justice and perjury are discrete offences, which cannot be used in the alternative. Finally, it was contended that the form of orders made by the Court failed to specify the illegal activities the proceeds of which were to be assessed, as required by s 28 of the Act.

Evidence that Ollis had been engaged in serious crime related activity for the purposes of s 27

23 Before dealing with the issues on the appeal, it is convenient to deal with the evidence upon which the Commission relied to establish that Ollis had been engaged in a serious crime related activity not more than six years before the making of the application.

24 The false statements upon which the Commission relied, were, as I have said, contained in affidavits sworn in support of Ollis’ application in the Local Court for an order that he pay a judgment debt by instalments. (Those affidavits were not before this Court.) The Commission became aware of this matter during the course of Ollis’ examination pursuant to the order under s 12 made by Sully J on 19 January 2006.

25 Ollis did not contend that the contents of the affidavits were true. Rather, he said that in the circumstances in which he signed the affidavits, he did not have any intent to pervert the course of justice or commit perjury. His explanation of the circumstances in which he signed the affidavits was that he had retained a solicitor to act for him on an application to pay the judgment debt by instalments. He said that the instructions to his solicitor were to make an application so as to get as much time as possible to repay the debt. He said they were his standard instructions to his solicitor at that time as he had “a whole heap of matters that were before the courts”.

26 Ollis said he did not know from where the solicitor obtained the information as to his financial circumstances which he conceded were false. He said that he did not provide the false information to the solicitor and the solicitor may have pulled material out of one of his files that was relevant at an earlier point in time. He said the solicitor did not sit down with him and ask him for the information to prepare the affidavits. Notwithstanding that, Ollis said that he signed the affidavits in the belief that his solicitor had prepared them correctly. He said if the solicitor had wanted any further information from him, he could have asked him, as the solicitor’s office was in the building next door to Ollis’ office. Ollis said more than once that he did not read documents but that it was “crap” to say that he had signed the affidavits “willy-nilly” without regard to whether they were accurate.

27 Ollis said he signed the affidavits in circumstances where his solicitor had handed the affidavits to him through the window of the car without reading them. He reiterated that he didn’t “read documents, remember” and denied he had signed the affidavits without any regard as to the truth or falsity of the statements in them. He said that he assumed they were correct, as he had a solicitor to prepare them for him.

First and second issues on the appeal:

1. Should the Court have drawn a

Jones v Dunkel

inference?

2. Did the Court wrongly reject Ollis’ evidence given in the s 12 examination?

28 Counsel for Ollis submitted that having regard to the nature of the application before Rothman J, namely, an application for summary judgment for orders under s 27(2), the drawing of a Jones v Dunkel inference was contrary to principle, or, alternatively, the trial judge should have warned Ollis as a matter of procedural fairness that the drawing of such an inference was under contemplation, so as to give him the opportunity to call evidence should he see fit to do so.

29 The inference which was drawn by the trial judge of which complaint is made was that the failure to call the solicitor who prepared the affidavits meant that the necessary inference was that the evidence of the solicitor would not have assisted Ollis’ case.

30 The application for summary judgment was made pursuant to UCPR r 13.1. Rule 13.1 provides relevantly that the court may give judgment on a claim or part of a claim if there is evidence of the facts on which the claim, or part thereof, is based, and there is evidence of the plaintiff or some responsible person, that in the belief of that person giving the evidence, the respondent has no defence to the claim or part of the claim.

31 The general principles relating to the summary disposal of proceedings are well-known. The absence of, relevantly, a defence, must be clearly demonstrated: General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 at 129; [1964] HCA 69 [8]-[10]. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless” or “would involve useless expense”: General Steel Industries at 129 [8].

32 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no arguable defence or that a defence is manifestly groundless is demanding: Air Services Australia v Zarb (NSWCA, 26 August 1998, unreported). In Webster & Anor v Lampard (1993) 177 CLR 598; [1993] HCA 57, Mason CJ, Deane and Dawson JJ said at 602-603 [5]:

“… the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried’

…

33 When regard is had to the principles which govern the summary disposal of proceedings, it must be said that the use of that procedure in this case is unusual. At one level, the Commission set itself a more difficult task in having to satisfy the Court that any defence was untenable. The Court never expressly considered whether that was so. Senior counsel for the Commission acknowledged that his Honour’s reasons for judgment do not deal with the matter on that basis and accepted that in order for this application to have been determined on the basis that it was an application for summary judgment, it would be necessary to read his Honour’s conclusion at [46] and [47] as containing a finding, implicitly, that there was no serious question to be tried.

34 The contention that it is necessary to read his Honour’s judgment in that way itself throws up the difficulty of his Honour having made his finding that Ollis had engaged in conduct contrary to s 178BB on the basis of inferential fact finding, supported by a Jones v Dunkel inference and an adverse credit finding in respect of evidence that was given on another occasion. Whilst his Honour could have been sceptical as to Ollis’ explanation of the circumstances in which he signed the affidavits and of his assertion that he did not read them before signing, it seems to me to be a significant step to make an adverse credit finding and to then reach a conclusion by a process of inferential reasoning supported by a Jones v Dunkel inference on such evidence. The fact that his Honour engaged in that process of reasoning indicates that he did not deal with the application in accordance with the principles that govern summary disposal of proceedings. Indeed, it is difficult to see how a Jones v Dunkel inference could ever be appropriately drawn on such an application.

35 Counsel for Ollis further submitted that his Honour, in not warning Ollis that he was considering drawing an inference, failed to afford procedural fairness in circumstances where, the matter being an application for summary judgment, there was no onus on Ollis as the respondent to that application to adduce evidence. Senior counsel for the Commission submitted that a respondent to an application for summary judgment is not precluded from adducing evidence and that a court may need to determine contentious issues of fact in order to determine whether summary judgment ought to be ordered. Having regard to what I have said in relation to his Honour’s reasoning process, it is unnecessary to deal further with this submission.

36 For the foregoing reasons, I am of the opinion that the Commission had not established there was no real issue to be tried and his Honour’s judgment was not in accordance with the principles governing the summary disposal of proceedings.

37 That, of course, is not sufficient of itself for the appeal to succeed. If in fact the evidence before the trial judge was sufficient to establish that Ollis had engaged in a serious crime related activity within the specified period on a basis whereby there was no tenable argument to the contrary, his Honour’s order may be upheld.

Third issue: witness immunity

38 Ollis contended before the trial judge that the evidence upon which the Commission relied could not be used for the purposes of s 27 to establish that he had engaged in a serious crime related activity, because he was entitled to the benefit of the principle of immunity from criminal prosecution in respect of statements made in the ordinary course of a judicial proceeding.

39 The principle of immunity from prosecution was explained by Lord Mansfield in R v Skinner (1772) Lofft 54 at 56; (1772) 98 ER 529 at 530 as follows:

“… neither party, witness, counsel, the jury, or Judge can be put to answer, civilly or criminally, for words spoken in office.”

40 In Hargreaves v Bretherton [1959] 1 QB 45 at 51 Goddard LCJ, after referring to Lord Mansfield's statement said:

“ … that is a perfectly clear statement … that for words spoken by a witness ‘in the office’ which means, of course, for this purpose in giving evidence, he cannot be put to answer either civilly or criminally.”

41 An explanation of the underlying basis for the principle is to be found in Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41. In that case, the appellant had brought proceedings against a Mr Ferrando alleging assault. The proceedings were defended and Ferrando called a number of witnesses to explain the circumstances of the appellant having received the injuries of which she complained. The proceedings were dismissed. Subsequently, the appellant brought a civil action against Ferrando and the witnesses claiming they had conspired together for the purposes of “injuring” her by the giving of false evidence.

42 Rich ACJ explained at 139 that

“Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness’ testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits and lead to interminable litigation.”

43 Starke J said at 141:

“The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court.” (Citation omitted)

44 McTiernan J, after referring to the principle said at 145:

“The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies.”

45 Williams J also emphasised the public purpose underlying the principle.

46 In R v Jurca (1986) 6 NSWLR 491 Herron DCJ undertook a lengthy analysis of the authorities relating to the operation of the immunity. Those authorities establish that “no action lies” where the immunity operates. See Henderson v Broomhead (1859) 4 H & N 569; [1859] 157 ER 964; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 264. These cases related to civil proceedings. In the case of criminal proceedings, the principle is that the immunity is from prosecution. Herron DCJ observed that it was apparent from Lord Mansfield’s comments that the court itself could deal with such conduct, but not by way of separate civil or criminal proceedings in respect of that conduct, save for the well-established exceptions to the principle, which permit prosecution for the conduct by way of, for example, contempt, perverting the course of justice, or perjury.

47 The exceptions to the principle were commented upon in Jamieson and Brugmans v R (1993) 177 CLR 574 at 582; [1993] HCA 48 [6], where Deane and Dawson JJ observed that the principle

such as perjury, contempt of court and, depending upon the circumstances, perverting the course of justice

Their Honours continued at 583 [8]:

and to any clear statutory provision to the contrary

made the basis of civil proceedings … or of criminal proceedings

48 The authorities establish that the immunity extends to a range of statements made out of court but which are connected in a relevant way to the court process. These include statements made in pleadings: Jamieson and Brugmans at 583 [8]; statements from potential witnesses in criminal proceedings made at a time when proceedings are in contemplation but not yet commenced: Evans v London Hospital Medical College (University of London) [1981] 1 All ER 715; statements made out of court that could fairly be said to be part of the process of investigating crime with a view to prosecution: Taylor & Anor v Director of the Serious Fraud Office & Ors [1999] 2 AC 177: see generally Meadow v General Medical Council [2007] QB 462 at 475 [12]; [2006] EWCA Civ 1390.

49 Ollis’ affidavit upon which the Commission relied is clearly within the category of material to which the immunity extends if it is otherwise applicable.

50 Counsel for Ollis contended that his Honour erred in finding that the immunity did not apply so as to prevent a finding that Ollis’ conduct in swearing false affidavits constituted a serious crime related activity for the purposes of s 27. Counsel referred to Jamieson and Brugmans, where the High Court held that the indictment upon which the appellant had been charged with making false statements in the course of judicial proceedings should be quashed. It was submitted that this demonstrated that the principle of immunity from suit was not a defence to a charge. Rather, it was a basis upon which a charge could not be brought. The Commission did not dispute the existence of the immunity. It contended, however, that it had no operation in respect of an application under s 27.

51 This disputation requires an examination of what underpins the principle so as to determine its scope and operation.

52 The rationale for the existence of the immunity was considered by the High Court in D’Orta-Ekanaike v Victorian Legal Aid (2005) 223 CLR 1 at 18-20 [39]-[42]; 35-36 [99]; [2005] HCA 12. Gleeson CJ, Gummow, Hayne and Heydon JJ explained that although there were a number of reasons that supported the immunity, including the desirability of protecting persons, for example, judges and witnesses who were discharging their duties, from baseless suits, the essential underpinning of the immunity is the need for finality of litigation. Their Honours said at 20 [41]:

“… the deeper consideration that lies beneath the principle is that determining whether the complaint made is baseless or not requires re-litigation of the matter out of which the complaint arises.”

53 The English authorities which are reviewed and summarised in Meadowv General Medical Council are relevantly consistent with the Australian authorities.

54 In Meadow, the question arose as to whether the immunity, in whole or in part, operated so as to preclude disciplinary proceedings being taken against Professor Meadow in respect of evidence he had given in criminal proceedings refuting the proposition that the children of the accused (the mother of the victims) might have died of Sudden Infant Death Syndrome. The English Court of Appeal remarked upon the reluctance of the courts to extend the immunity, noting at 477 [17] that when it did operate, the immunity is absolute. Sir Anthony Clarke MR (Auld and Thorpe LLJ agreeing) held that the immunity did not extend to the disciplinary proceedings that had been instituted against Professor Meadow. However, it is important to recognise that it is accepted that the operation of the immunity protects a person who gives false evidence. That evidence cannot be the basis of further litigation except to the extent that the exceptions to the principle allow: see Cabassi per Starke J at 141 quoted at [43] above.

55 The immunity precludes the bringing of civil or criminal action other than to the extent of the recognised exceptions. It is necessary, therefore, to determine the nature and operation of an application under s 27, to see whether the immunity extends to it. The determination of this question also involves a consideration of the question whether applications under the Act constitute a statutory exception to the application of the principle: see Jamieson and Brugmans v R.

56 Section 5(1) of the Act provides that proceedings on an application for a restraining or confiscation order are not criminal proceedings. Applications under the Act are brought in the Supreme Court and are subject to the procedures of the Court. The rules of statutory construction of non-criminal legislation apply: s 5(2)(a). The rules of evidence for civil proceedings apply and those applicable only in criminal proceedings do not apply: s 5(2)(b). (There is an exception to this in s 22A which relates to an asset forfeiture order in respect of external serious crime related activity. That exception is not presently relevant.)

57 The amount assessed as being payable under s 27 is a debt payable to the Crown: s 27(1). An assets forfeiture order may be made notwithstanding that a proceeds assessment order has also been made: s 27(6). Amounts may be exempted from the sale of forfeited property in cases of hardship of a spouse or dependents: s 24, and the Court may order that payment of legal expenses be made out of property that is subject of a restraining order: ss 16A and 16B.

58 These provisions, taken in conjunction with the very nature of applications that may be made under the Act, which are applications to deprive persons of the proceeds of crime, demonstrate that proceedings brought under the Act by the Commission are not typically civil suits, wherein one party asserts a claim against another party. Nor do such proceedings constitute prosecution for an offence. Rather, the Act provides a regulatory regime whereby persons who are suspected of engaging in serious crime related activities are deprived of property and the proceeds of serious crime related activities are recoverable as a debt due to the Crown. Those considerations tend to a conclusion that, with respect to proceedings under the Act, being neither a criminal prosecution nor a civil suit, the immunity has no application.

59 This view is also supported by the manner and the circumstances in which s 27 operates. The relevant words of s 27(2) are “that the person against whom the order is sought was … engaged in a serious crime related activity”. “A serious crime related activity” is “a reference to anything done by the person that was at the time a serious criminal offence”, whether or not the person has been tried, tried and acquitted or has been convicted, even if the conviction has been quashed or set aside: s 6(1). A “serious criminal offence” is, relevantly, an offence within the category of specified offences in s 6(2)(d) that is punishable by imprisonment for five years or more.

60 What is required for the purposes of s 27(2) is, relevantly, proof on the civil standard that the person against whom the order is sought “engaged in” a serious criminal offence punishable by imprisonment for five years or more. The fact of immunity from prosecution or suit does not extinguish or neutralise the conduct which would otherwise form the basis of a charge or civil claim. It precludes the bringing of a charge or civil claim. However, the bringing of an application under s 27 or any other application under the Act. For instance, a restraining order or an assets forfeiture order, does not involve a prosecution of the crime constituted by the underlying conduct, or the bringing of a civil suit in the ordinary meaning of that concept. Indeed, an application under the Act may be made regardless of whether a person has been tried, or has been tried and acquitted or convicted, even if the conviction has been quashed or set aside: s 6(1). If the immunity applies, a person cannot be tried and if tried, the conviction must be quashed, as was the case in Jamieson and Brugmans.

61 Approaching the matter that way, the question becomes whether, if there is immunity from prosecution or from suit for the offence constituted by swearing the false affidavit, can it be said that the person who has sworn that affidavit has “engaged in a serious crime related activity involving an offence punishable by imprisonment for 5 years or more”? In other words, if the offence could not be made the subject of prosecution so that a person could not be punished for it, could it be said that that person has engaged in a serious crime related activity as defined?

62 The posing of these alternate questions reveals the difficulty of the issue before the Court. Does one focus on the conduct said to constitute the serious crime related activity, or upon the offence which is punishable by imprisonment for a specified period for the purposes of s 27? If the correct approach is to have regard to the conduct, then I consider that the immunity would not operate so as to prevent reliance by the Commission upon conduct which, in this case, would constitute an offence under s 178BB of the Crimes Act.

63 On the other hand, if, in seeking to determine whether the immunity applies, one asks the question whether a “serious criminal offence” has been made the basis of an application under the Act, then the focus is on the commission of the offence with the consequent liability to punishment, so that the operation of the immunity would mean that the person had not engaged in an offence that was punishable by the relevant period of imprisonment. As Deane and Dawson JJ explained in Jamieson at 583 [8], in respect of a civil claim, the conduct cannot be “made the basis of civil proceedings”. In other words, the affidavits in the Local Court proceedings had to be the basis upon which the Commission relied for the purposes of the application for the proceeds assessment order. However, the conduct which otherwise constitutes the offence cannot, if the immunity operates, be made the basis of civil proceedings.

64 At this point it is necessary to return to the provisions of s 27. Section 27(1) provides that the Commission may make an application for a proceeds assessment order for the payment of money as assessed by the court as the value of proceeds derived from an illegal activity or activities. As such, subs (1) does not provide the juridical basis for the making of the order. That basis is properly found in subs (2).

65 Section 27(2) provides that the court must make an order if it is more probable than not that the person has engaged in an offence which is a serious crime related activity punishable by imprisonment for five years or more. On the basis that the relevant offence upon which the Commission sought to rely for the purposes of subs (2) was the offence under s 178BB, it was necessary for it to rely upon the affidavits in the Local Court proceedings and to prove that the evidence contained in those affidavits was false. That in itself would require that there would have to be a determination made by the Supreme Court as to whether that evidence was false so as to be able to determine whether Ollis had engaged in an offence. That consideration tends to support the view that the immunity applies.

66 However, it is not necessary for the purposes of s 27 (or for the purposes of s 22 relating to an application for an assets forfeiture order) that there be a conviction for the offence relied upon to found the application: see s 6(1). That refocuses attention on the conduct. However, there is another consideration which, in my view, is determinative of the issue. The very purpose of the legislation is to recover proceeds of crime, so that persons cannot benefit from illegal activity. It is not necessary that the serious crime related activity relied upon to found an application be the one that was the source of the ‘proceeds of crime’ that the State seeks to attach. But it may be. If the offence upon which the application was based was the source of the proceeds of crime sought to be attached, it would defeat the very object and purpose of the Act if that offence could not be relied on because of the operation of the immunity. The position must be the same if the offence relied upon is some different offence than that from which proceeds of crime are obtained. Reliance upon some such different offence is permitted by the terms of the section. The Act must govern and the immunity must operate in a consistent and principled way and that would not happen if the immunity operated in the case of an offence which was not the source of the proceeds but did not operate in the case of an offence which was the source of the proceeds.

67 It seems to me, therefore, that not only is an application under the Act not a prosecution or a civil suit, but the intention of the Act is to operate upon conduct which constitutes a serious criminal offence so as to provide a statutory exception to the operation of the immunity: see Jamieson and Brugmans v R at 583, [8]. It follows therefore that this challenge to his Honour’s judgment must fail.

Fourth and fifth issues: perverting the course of justice

68 The Commission contended alternatively that Ollis had engaged in serious crime related activity by making false statements and in so doing intended to pervert the course of justice contrary to s 319 of the Crimes Act. The meaning of “pervert the course of justice” is contained in s 312, which provides that:

“A reference … to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.”

69 The Commission’s reliance upon s 319 was important because an offence under that section is not subject to the common law principles of witness immunity: Jamieson and Brugmans v R.

70 Counsel for Ollis submitted, however, that his Honour erred in finding it was more probable than not that Ollis engaged in conduct which would amount to a contravention of s 319. Rather, it was submitted that the conduct upon which the Commission relied, namely the swearing of false affidavits, constituted the offence of perjury under s 327 or false swearing under s 330 of the Crimes Act and accordingly, such conduct could not, or at least should not, be taken as the basis for some other offence, such as an offence under s 319.

71 The basis for this submission was that the offences of perjury and false swearing are contained in a separate Division of Pt 7 of the Crimes Act from s 319 and, further, may only be prosecuted in the circumstances specified in s 338, which provides that a person is not to be prosecuted for perjury except by the Director of Public Prosecutions, or at the direction of the Attorney-General, or by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed. It was submitted that it could not have been the intention of the legislature that a person who had committed the offence of perjury and who could only be prosecuted in the circumstances prescribed by s 338, could also be prosecuted for another offence based upon the same conduct. It was then argued that perjury is not one of the offences which is specifically mentioned in s 6(2)(d) of the Act.

72 The trial judge observed at [32] that most criminal activity will contravene more than one legislative prohibition and relevantly, in a given area, conduct might constitute perjury and also constitute a contravention of s 319. His Honour considered that this was so in this case. His Honour’s conclusion on this is correct: see Butler v Attorney General for the State of Victoria (1961) 106 CLR 268; [1961] HCA 32; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Clarkson v R [2007] NSWCCA 70.

73 In his argument on the appeal, senior counsel for the Commission also submitted that perjury, as a matter of ordinary parlance, was an offence that involved perverting the course of justice. The submission was that the offences referred to in s 6(2)(d) were described generically. Thus the reference to the offence of theft would include, for example, the various offences of larceny, certain offences of break and enter and the various offences of stealing. The specification of an offence involving tax or revenue evasion would provide another fertile field of examples. The restriction in any particular case is that the offence must be one that is punishable by imprisonment for five years or more.

74 In my opinion, this submission should be accepted. Section 6(2)(d) does not refer to specific offences as such. Rather, it refers to an offence that involves each of the specified categories of an offence. Therefore, the fact that the section does not identify perjury in express terms does not mean that the offence of perjury does not fall within its terms. If perjury is committed in circumstances where the falsehood was told in order to pervert the course of justice, as would be the case where the falsehood was told in order to obtain a concession, benefit or result in proceedings that would not otherwise be available, that, in my opinion, would satisfy the concept of perverting the course of justice within the meaning of s 6(2)(d).

75 Notwithstanding that the Commission was entitled to rely upon an offence under s 319 and notwithstanding that Ollis’ conduct might also have constituted perjury or false swearing, that does not resolve the question whether the court could have entered summary judgment for a proceeds assessment order based on that offence. In considering this question, for the reasons I have given above, it is necessary to determine, on the evidence before the Court, whether there was a real question to be tried.

76 An offence under s 319 involves the doing of an act or the making of an omission with intent in any way to pervert the course of justice. Intent may be inferred in circumstances where the conduct relied upon as the basis for the offence has an obvious or manifest tendency to pervert the course of justice: The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25; Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 91.

77 On the evidence that Ollis gave on the s 12 examination, a court might be satisfied on the civil standard that he made the statements with reckless disregard as to whether the statements were true, false or misleading. A court may also be satisfied on that evidence that he made the statements with intent to obtain a financial advantage. After all, it might be thought that that was the very point in making the statements, namely, to provide evidence to the Court to support an application for payment by instalments of a judgment debt.

78 However, proving that a false statement has been made recklessly does not necessarily establish that the false statement was made with the requisite intent to pervert the course of justice, being the alternate charge that the Commission relied upon for the purposes of s 27. Ollis’ evidence on this raised a question as to whether he had the requisite intent to do so. That being so, it could not be said that there was no real question to be tried and accordingly, the Court should not have entered summary judgment.

The form of the orders

79 Finally, Ollis contended that an order made under s 27 had to specify the illegal activities the proceeds of which were to be assessed. It was submitted that this was apparent from the wording of s 27, and in particular, s 28. Having regard to the conclusion I have reached above, it is not necessary to determine this point as the orders should be set aside. However, I will consider it briefly.

80 Section 27 is set out at [10] above. Section 28 provides, relevantly:

“28 Assessment of proceeds of serious crime related activity

the defendant

(a) the money, or the value of any interest in property other than money, directly or indirectly acquired by:

(i) the defendant, or

(ii) another person at the request, or by the direction, of the defendant,

(b) the value of any service, benefit or advantage provided for:

(i) the defendant, or

(ii) another person at the request, or by the direction, of the defendant,

(c) the market value, at the time of the illegal activity or of each illegal activity, of a plant or drug similar, or substantially similar, to any involved in the illegal activity or each illegal activity, and the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity or each illegal activity,

(d) the value of the defendant’s property before and after the illegal activity or each illegal activity,

(e) the defendant’s income and expenditure before and after the illegal activity or activities.

(2) If evidence is given at the hearing of an application for a proceeds assessment order that the value of the defendant’s property after an illegal activity or illegal activities of the defendant exceeded the value of the defendant’s property before the activity or activities, the Supreme Court is to treat the excess as proceeds derived by the defendant from the activity or activities, except to the extent (if any) that the Supreme Court is satisfied the excess was due to causes unrelated to an illegal activity or activities.

81 The submissions themselves were brief. Counsel for Ollis simply pointed out that when regard is had to, for example, the wording of subs (2), it would appear that it was contemplated that the Court would not only make a proceeds assessment order, but would also specify the illegal activities in respect of which the proceeds were to be assessed.

82 Section 27(1) provides that the Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer

“… an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity … whether or not any such activity is an activity on which the application is based.”

83 In the circumstances here, it would be open to the Court to make a proceeds assessment order in respect of the illegal activity constituted by Ollis’ operation of the ATR facility, notwithstanding that that was not the serious crime related activity upon which the Commission relied for the purposes of s 27(2). Likewise, orders could be made in respect of other illegal activity.

84 The submission in respect of the form of order was made in the context of the Court making a proceeds assessment order, without proceeding to make the assessment. There was no error in the Court not proceeding to the assessment immediately. There are many occasions in which an order is made which then requires a further process for the underlying quantum to be assessed. An enquiry as to damages is one example. The separate determination of damages is another.

85 The Court can only proceed to an assessment of the value of proceeds derived from an illegal activity. Accordingly, at the time that the court engages in the assessment process, there needs to be a specification as to what is to be assessed. That specification needs to be made by the court.

86 It would not be sufficient for the Commission, on the assessment process, to merely state the activities to which it sought to relate the assessment. It would need to prove that those activities were illegal activities from which value was derived. It may be appropriate, however, for the Court to make that determination in the proceedings in which the assessment is made.

Conclusion

87 For the reasons I have given, the order for summary judgment should be set aside. Accordingly, I propose the following orders:

1. Extend the time in which to file the Summons for Leave to Appeal to 4 October 2006;

2. Grant leave to appeal;

3. Appeal allowed;

4. Set aside orders made by Rothman J on 7 June 2006;

5. Dismiss the Notice of Motion for summary judgment;

88 HODGSON JA: I agree with the orders proposed by Beazley JA and, except in one respect, with her reasons.

89 The issue on which I disagree with Beazley JA’s reasons is the issue of witness immunity, identified by her as the third issue. That issue involved the construction and effect of relevant parts of ss.6 and 27 of the Criminal Assets Recovery Act 1990 (NSW) (the Act), namely:

6 Meaning of “serious crime related activity”

27 Making of proceeds assessment order
(1) The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2) or (2A).

…

90 The Commission’s contention was relevantly that, by making false statements in affidavits sworn in Local Court proceedings, Ollis had engaged in conduct which constituted an offence under s.178BB(1) of the Crimes Act 1900 (NSW):

178BB Obtaining money etc by false or misleading statements

91 In Jamieson v. The Queen (1993) 177 CLR 574, the High Court of Australia held that the appellants in that case were protected from criminal liability under s.178BA(1) of the Crimes Act in respect of false statements made in a Statement of Claim, by reason of immunity from criminal prosecution in respect of words used by a person in the ordinary course of judicial proceedings. Section 178BA(1) of the Crimes Act is in the following terms:

178BA Obtaining money etc by deception

92 In Jamieson at 582-3, Deane and Dawson JJ said this:

The general proposition, enunciated by Lord Mansfield in R v Skinner ((1772) Lofft 54, at 56, 98 ER 529 at 530), that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office", must be qualified by a number of well-established exceptions. In particular, in so far as criminal proceedings are concerned, it must be qualified as regards substantive administration of justice offences (such as perjury, contempt of court and, depending upon the circumstances, perverting the course of justice) and offences associated therewith (such as conspiracy and attempt). Nonetheless, and notwithstanding the submissions of the Crown to the contrary, the proposition as so qualified remains valid as a general statement of common law principle.

It is true that, until recently, there has been a dearth of cases in which common law courts have been called upon to quash a criminal proceeding or conviction by application of the principle. That is not, however, surprising. It could scarcely be expected that prosecuting authorities would institute proceedings in disregard of a general proposition of common law principle which had been enunciated by Lord Mansfield and subsequently endorsed by strong authority including a unanimous Court of Exchequer Chamber constituted by ten judges. As Gaudron J points out in her judgment in the present appeals, that general principle is sustained by considerations of public policy. The oppressive burden of legal costs already constitutes a formidable deterrent to the citizen of ordinary means who seeks to invoke the jurisdiction of the courts against either an instrumentality of government or a financially powerful corporation or individual. It would constitute a further significant and most undesirable disincentive if, apart from the controls against abuse of process embodied in administration of justice offences and abuse of process proceedings, such a citizen was faced with the potential threat of being subjected to the burden of criminal proceedings, instituted or initiated by such a government instrumentality or financially powerful defendant, in respect of any words which she might use in the ordinary course of such proceedings. In that regard, it is relevant to note that, as the present proceedings against Ms Brugmans illustrate, the institution of such a criminal prosecution would not necessarily be delayed until after the determination of the civil proceedings.

93 At 584, they said this:

There remains for consideration the question whether there is to be discerned in any relevant statutory provision a legislative intent precluding or qualifying the application of the general principle to the offence of dishonestly obtaining money by deception or to the offence of attempting to commit that offence. The relevant statutory provisions are s178BA (dealing with the substantive offence) and s344A (dealing with an attempt) of the Crimes Act 1900 (NSW). Examination of their terms discloses nothing at all which could properly be seen as evidencing a legislative intent to qualify or preclude the application of the relevant principle either generally in relation to "words spoken" in the course of judicial proceedings or particularly in relation to words contained in a statement of claim served upon a defendant in the course of such proceedings.

94 Toohey and McHugh JJ dissented, on the basis that the general exclusion of criminal liability for statements made in the course of and with respect to judicial proceedings, did not preclude a prosecution under s.178BA of the Crimes Act based on the instigation of those proceedings. However, on that matter, I note that the third judge of the majority, Gaudron J, said this at 593-4:

In my view, it is not possible, in circumstances such as those with which these appeals are concerned, to distinguish between the instigation of legal proceedings by service of originating process and the making of statements in that process. The central feature of an offence under s178BA is deception. In the context of an allegation of deception or, indeed, of dishonesty of any kind, service of originating process cannot be viewed in isolation from what is said in it. It is only by having regard to what is, in fact, said and claimed, that service of originating processes can, in any way, assume a deceptive or dishonest aspect. Thus, as the appellants claim, a prosecution under s178BA of the Crimes Act, based on service of a statement of claim is, in substance and effect, a prosecution for what is said in it. However, that does not dispose of the appeals for s178BA does not, in terms, exclude the instigation of judicial proceedings, statements made in originating process or, even, statements made in the course of those proceedings from the offence which it creates, and it is, thus, necessary to consider whether all or any of these acts fall within its terms.

95 Gaudron J then continued at 594-5:

The best known statement of the privilege on which the appellants rely for their primary argument is that of Lord Mansfield in R v Skinner : "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office".

That statement has been accepted as authoritative on many occasions, but it must be remembered that, so far as the criminal law is concerned, it is subject to a number of clear exceptions. Thus, perjury, contempt, perverting the course of justice and their associated offences are exceptions to or stand outside the privilege, they being offences which may, and usually do, involve statements made in the course of legal proceedings.

Perjury, contempt and perverting the course of justice are offences which serve to protect the integrity of the judicial process. The privilege which attaches to statements made in the course of legal proceedings also serves important functions in relation to that process: it promotes resort to the courts for the resolution of justiciable issues; and, it protects the judgments of the courts from collateral attack.

Cabassi v Vila

"An action by the defeated party cannot ... be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness' testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation".

96 Two questions arise:

97 The second question involves two subsidiary questions:

98 As regards question (1), s.27(2)(b) of the Act, together with ss.6(1) and (2)(d) of the Act, require consideration whether what was done by Ollis was, at the time, “an offence that is punishable by imprisonment for 5 years or more and that involves … fraud”.

99 In my opinion, even accepting that what was done did include all the elements specified in s.178BB, it could not be considered as being “an offence that is punishable by imprisonment for 5 years or more”, because witness immunity meant that it was not punishable at all. The contrary view, that once you have the elements specified in s.178BB, you automatically have an offence under s.178BB, which is by s.178BB made punishable by imprisonment for 5 years, seems to me to be a strained and artificial reading of the words. The conduct was not punishable at all; so in my opinion it was not conduct that was an offence punishable by imprisonment.

100 If that view is wrong, question (2) would arise. I accept that the circumstances giving rise to witness immunity should not be extended, unless it is necessary to do so: Mann v. O’Neill (1997) 191 CLR 204 at 213-14. However, that is a different question from whether the consequences of immunity should be applied more widely than to criminal and civil proceedings strictly so called. In Meadow v. General Medical Council [2007] QB 462, the English Court of Appeal held that witness immunity did not apply to protect an expert witness from professional disciplinary proceedings in respect of evidence given in court; although I note that the Court of Appeal in that case did not recognise that the immunity applied to criminal as well as civil proceedings, and did not recognise the distinction I have drawn between extending circumstances giving rise to the immunity and extending the consequences of immunity.

101 In my opinion, having regard to the justification for the immunity as explained in Jamieson, the immunity does apply to proceedings that, although not civil or criminal proceedings, narrowly construed, are court proceedings resulting in serious adverse consequences. Proceedings under the Act would in my opinion be considered as proceedings for a civil penalty, such as would attract the privilege against self-incrimination. In my opinion it would be an odd result if they were not proceedings to which witness immunity applied.

102 The second aspect to question (2) is whether the legislature has shown an intention to displace the immunity. It has not done so by express words, and in my opinion it has not done so by implication. Beazley JA says that it would defeat the object and purpose of the Act if fraudulent conduct by which money was obtained could not be relied on to attach that money. However, if that fraudulent conduct involved an offence that was an exception to the witness immunity principle, such as perverting the course of justice, it could be relied on; and it seems likely that fraudulent conduct in giving evidence, resulting in wrongful acquisition of property, would amount to perverting the course of justice. I note that the fact that conduct falling within s.178BA of the Crimes Act might also amount to perverting the course of justice did not suggest to the High Court in Jamieson that exceptions to the immunity should extend to an offence under s.178BA.

103 For those reasons, I am of the opinion that witness immunity applies, so that it was not available to the Commission to rely on an offence contrary to s.178BB for the purpose of obtaining a proceeds assessment order under s.27(2) of the Act.

104 TOBIAS JA: I have had the benefit of reading in draft the judgments of Beazley JA and Hodgson JA. I agree with the orders proposed by Beazley JA and with her reasons. However, because Hodgson JA has expressed disagreement with her Honour’s determination of the third issue identified by her and relating to witness immunity, I would wish to add some observations of my own.

105 In [99] of his judgment Hodgson JA opines that what was done by Ollis in swearing two false affidavits was not “an offence that [was] punishable by imprisonment for five years or more” as it was not punishable at all because of witness immunity. However, when read in the context of ss 6(1) and 27(5) of the Criminal Assets Recovery Act 1990 (NSW) (the Act), all that is required by s 27(2) is that the conduct in question constitutes an offence being one which is punishable by imprisonment for five years or more. The form of punishment (imprisonment for five years or more) is in my opinion intended to qualify or describe the offence which constitutes the relevant “serious criminal offence”; it does not qualify the particular conduct relied upon to constitute the offence itself in the sense that the offender must be liable to, or at risk of being found liable to that punishment.

106 In any event it is common ground that the immunity is subject to any legislative intention, express or implied, to displace it. In my opinion the immunity has been displaced by implication. Section 27(2) of the Act requires that the person against whom a proceeds assessment order is sought must have been “engaged in” a serious crime related activity. The provision therefore focuses on the nature of the conduct “engaged in” by that person rather than its legal consequences. That is, it is not concerned with the liability or potential liability of that person for his or her conduct.

107 By swearing the false affidavits Ollis “engaged in” the offence of obtaining money with intent to obtain a financial advantage by making the false statements contained therein. It matters not in my view that he is immune from prosecution for that offence so that it must follow that if he cannot be prosecuted then he cannot be punished for his criminal conduct.

108 The foregoing approach to the construction of s 27(2) is consistent with the provisions of s 6(1) of the Act which makes it irrelevant whether or not the person who engages in the relevant conduct has been charged with the serious criminal offence in question or, if charged, whether or not he has been tried and acquitted or tried and convicted and the conviction quashed or set aside. Furthermore, s 27(5) provides that the validity of the proceeds assessment order is not affected by the quashing or setting aside of a conviction for a serious crime related activity being a serious criminal offence that is punishable by imprisonment for five years or more that involves, inter alia, fraud.

109 Thus if Ollis had been prosecuted, tried and convicted of an offence under s 178BB but the indictment and, therefore, the conviction subsequently quashed due to his immunity from prosecution, that result would not affect the validity of the order. As Beazley JA observes in [60] above, the fact of immunity from prosecution or suit does not extinguish or neutralise the conduct which would otherwise form the basis of a criminal charge or civil claim. The offence is nonetheless committed (that is, “engaged in”) even if the perpetrator can never be tried or prosecuted for it.

110 Accordingly, upon the true construction of s 27(2) of the Act, in my opinion it was open to the Commission to rely upon the swearing of the false affidavits by Ollis as conduct “engaged in” by him and constituting an offence under s 178BB for the purpose of the making of the proceeds assessment order. Although Ollis could not be prosecuted for that offence due to his immunity, he nevertheless “engaged in” conduct involving that offence within the meaning of s 27(2)(b). That was sufficient to engage the Supreme Court’s power to make the proceeds assessment order.

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Citations

Ollis v New South Wales Crime Commission [2007] NSWCA 311

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Statutory Material Cited

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CITATION:	Ollis v New South Wales Crime Commission [2007] NSWCA 311 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	2 April 2007
JUDGMENT DATE:	2 November 2007
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 88; Tobias JA at 104
DECISION:	1. Extend the time in which to file the Summons for Leave to Appeal to 4 October 2006; 2. Grant leave to appeal; 3. Appeal allowed; 4. Set aside orders made by Rothman J on 7 June 2006; 5. Dismiss the Notice of Motion for summary judgment; 6. The respondent is to pay the appellant’s costs of the Summons for Leave to Appeal, the appeal and the costs at first instance.
CATCHWORDS:	CRIMINAL LAW – statutory construction – criminal conduct may constitute more than one offence – s 6(2)(d) of the Criminal Assets Recovery Act 1990 (NSW) does not refer to specific offences but categories of offences – perjury may satisfy the concept of perverting the course of justice – failure to establish defendant made false statement with intent to pervert course of justice – real question to be tried – error in ordering summary judgment - EVIDENCE – witness immunity – exceptions – statements made in the course of judicial proceedings – immunity otherwise applicable – whether Criminal Assets Recovery Act 1990 (NSW) provided an exception to the immunity – application under the Act not typical civil suit or criminal prosecution – intention of legislature – Act concerned with conduct not liability or potential liability to punishment - PROCEDURE – summary judgment – r 13.1 Uniform Civil Procedure Rules 2005 (NSW) – inappropriate where real question to be tried - PROCEDURE – application for summary judgment – defendant did not adduce evidence on application – trial judge made adverse credit finding and drew Jones v Dunkel inference from failure to call witness – whether trial judge’s reasoning was consistent with principles governing summary judgment
LEGISLATION CITED:	Crimes Act 1900 (NSW) ss 178BB, 312, 319, 327, 330, 338 Criminal Assets Recovery Act 1990 (NSW) ss 5, 7,10, 12, 16A, 16B, 22, 24, 27, 28, 31 Uniform Civil Procedure Rules 2005 (NSW) r 13.1
CASES CITED:	Air Services Australia v Zarb (NSWCA, 26 August 1998, unreported) Butler v Attorney General for the State of Victoria (1961) 106 CLR 268; [1961] HCA 32 Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41 Clarkson v R [2007] NSWCCA 70 D’Orta-Ekanaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Dawkins v Lord Rokeby (1873) LR 8 QB 255 Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 Evans v London Hospital Medical College (University of London) [1981] 1 All ER 715 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125; [1964] HCA 69 Hargreaves v Bretherton [1959] 1 QB 45 Henderson v Broomhead (1859) 4 H & N 569; [1859] 157 ER 964 Jamieson and Brugmans v R (1993) 177 CLR 574; [1993] HCA 48 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Meadow v General Medical Council [2007] QB 462; [2006] EWCA Civ 1390 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 91 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 R v Jurca (1986) 6 NSWLR 491 R v Skinner (1772) Lofft 54; (1772) 98 ER 529 Taylor & Anor v Director of the Serious Fraud Office & Ors [1999] 2 AC 177 The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25 Webster & Anor v Lampard (1993) 177 CLR 598; [1993] HCA 57
PARTIES:	Victor Warren Ollis (Appellant) New South Wales Crime Commission (Respondent)
FILE NUMBER(S):	CA 40404/06
COUNSEL:	C J Dibb (Appellants) I Temby QC; P Singleton (Respondent)
SOLICITORS:	Darryl Barlow & Co (Appellants) New South Wales Crime Commission (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 10278/06
LOWER COURT JUDICIAL OFFICER:	Rothman J
LOWER COURT DATE OF DECISION:	7 June 2006