Re Application under the Major Crime (Investigative Powers) Act 2004

128

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

No. 11 of 2008

IN THE MATTER of the Major Crime (Investigative Powers) Act 2004

and

IN THE MATTER of an application under section 5(1) of the Act for a coercive powers order.

DAS	Applicant
v
VICTORIAN HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION	Intervener

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JUDGE:	WARREN CJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23-24 February 2009
DATE OF JUDGMENT:	7 September 2009
CASE MAY BE CITED AS:	Re Application under the Major Crime (Investigative Powers) Act 2004
MEDIUM NEUTRAL CITATION:	[2009] VSC 381	1^st REVISION, 29.9.09

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HUMAN RIGHTS – Right not to be compelled to testify against oneself or to confess guilt – Right to a fair hearing – Privilege against self-incrimination – Use of evidence derived from compelled testimony - Derivative use immunity – Whether derivative use immunity part of right against self-incrimination – Whether derivative use immunity part of right not to be compelled to testify against oneself or to confess guilt and right to a fair hearing.

STATUTORY INTERPRETATION - Major Crime (Investigative Powers) Act 2004 ss 9(2)(g), 39(1) – Charter of Human Rights and Responsibilities 2006 ss 7(2), 24(1), 25(2)(k), 32 – Principles of statutory construction - Whether limitation on right demonstrably justified in a free and democratic society - Whether right can be interpreted consistently with the purpose of the Major Crime (Investigative Powers) Act 2004.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Davidson	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Intervener	Ms K Walker	Victorian Human Rights and Equal Opportunity Commission

HER HONOUR:

This is an application under s 10(1)(b) of the Major Crime (Investigative Powers Act) 2004 (‘the Act’) to vary a coercive powers order made by a judge of the Trial Division on 20 October 2008 pursuant to s 5(1) of the Act. His Honour made the coercive powers order subject to the following condition: that any person who has been charged with any offence linked to the organised crime offence the subject of the coercive powers order will not be summonsed to give evidence at an examination until resolution of the issue with respect to s 25(2)(k) of the Charterof Human Rights and Responsibilities Act2006 (‘the Charter’). The applicant seeks to vary the coercive powers order so as to remove that condition.

It is unnecessary to refer to the specific details of the organised crime offence the subject of the coercive powers order, or to the persons affected by it. Indeed, in imposing the condition, the judge indicated that it would be preferable for the issue to be resolved as a matter of general principle rather than by reference to the specific crime the subject of the order. Whilst the applicant filed affidavit materials in support, including some reference to an individual case, it should be noted that much of the following analysis and discussion is in the abstract. The hearing before me proceeded in camera because of concerns as to the sensitivity of any evidence and facts. That said, the condition imposed by the judge limits the issue for determination to persons who have been charged with an offence. Thus, the matter to be clarified and determined is the nature of the relationship between the powers of investigation of organised crime offences in the Act, and the human rights guaranteed by ss 24(1) and 25(2)(k) of the Charter, namely, a person’s right to a fair hearing and right not to be compelled to testify against him or herself or to confess guilt.

The applicant is a member of the Victoria Police who seeks authorisation from the court to question an individual under the Act. The Victorian Human Rights and Equal Opportunity Commission (‘the Commission’) intervenes pursuant to s 40 of the Charter which grants standing to the Commission to intervene in legal proceedings in which a question of law related to the application of the Charter arises.

The terms of the Act and of the Charter[1]

[1]The scheme of the Act was described in some detail by Kaye J in CR v A-G (Victoria) [2007] VSC 263.

The purpose of the Act is to provide a regime for the authorisation and oversight of the use of coercive powers to investigate organised crime offences.[2] A coercive powers order authorises the use of such powers to investigate an ‘organised crime offence’ which is defined by the Act to mean:

an indictable offence against the law of Victoria, irrespective of when the offence is suspected to have been committed, that is punishable by level 5 imprisonment (10 years maximum) or more and that ‑
(a) involves 2 or more offenders; and
(b) involves substantial planning and organisation; and
(c) forms part of systemic and continuing criminal activity; and
(d) has a purpose of obtaining profit, gain, power or influence.[3]

[2]Major Crime (Investigative Powers Act) 2004, s 1(a).

[3]Major Crime (Investigative Powers Act) 2004, s 3.

Under s 5(1) of the Act, a member of the police may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, or is likely to be committed. An application must specify, amongst other things, the name and rank of the applicant and the particulars of the organised crime offence in respect of which the coercive powers order is sought.[4] Under s 5(5) of the Act, the Supreme Court may require the applicant to provide any additional information that the Court requires in relation to the application.
[4]Major Crime (Investigative Powers Act) 2004, s 5(3).

Section 21(a) of the Act provides for the appointment of a Chief Examiner by the Governor in Council. Pursuant to s 29 of the Act, the Chief Examiner may conduct an examination of a person in relation to an organised crime offence if, inter alia, the Chief Examiner has received a copy of a coercive powers order made in respect of that offence. Part 5 of the Act contains a detailed set of provisions designed for the oversight of compliance by the Chief Examiner with the Act. That oversight is undertaken by a Special Investigations Monitor appointed under Part 2 of the Major Crime (Special Investigations Monitor) Act 2004.

The Supreme Court may make a coercive powers order if satisfied that there are reasonable grounds for the suspicion founding the application and if ‘it is in the public interest to make the order having regard to the nature and gravity of the alleged organised crime offence and the impact of the use of the coercive powers on the rights of members of the community’.[5] In addition, the Supreme Court may specify in a coercive powers order any conditions it imposes under the order.[6]
[5]Major Crime (Investigative Powers Act) 2004, s 8(b).
[6]Major Crime (Investigative Powers Act) 2004, s 9(2)(g).

Section 10(1) of the Act provides for the variation and extension of coercive powers orders on application by a relevant member of the police force. Under s 14 of the Act, the Supreme Court may issue the following types of witness summons on application by a member of the police:

(a) a summons to attend an examination before the Chief Examiner to give evidence;
(b) a summons to attend at a specified time and place to produce specified documents or other things to the Chief Examiner;
(c) a summons to attend an examination before the Chief Examiner to give evidence and produce specified documents or other things.

The application must indicate the evidentiary or intelligence value of the information sought to be obtained from the person to whom the summons is to be directed.[7]
[7]Major Crime (Investigative Powers Act) 2004, s 14(4)(d).

Similarly, if a coercive powers order is in force, the Chief Examiner may issue the same witness summons as the Supreme Court on his or her own motion, or on application from a member of the police force.[8] The Chief Examiner may issue a summons if satisfied that it is reasonable to do so after consideration of, inter alia, the evidentiary or intelligence value of the information sought to be obtained from the person. The procedure for the making of an application for the issue of a summons is determined by the Chief Examiner.[9] Witnesses, once summoned, are compelled to attend and give evidence.[10]
[8]Major Crime (Investigative Powers Act) 2004, s 15(1)-(2).
[9]Major Crime (Investigative Powers Act) 2004, s 15(3).
[10]Major Crime (Investigative Powers Act) 2004, s 37(1).

Section 20(2) of the Act states that the Supreme Court or the Chief Examiner, as the case may be, must give notice[11] to a person to whom a witness summons is issued,

if failure to do so would reasonably be expected to prejudice the safety or reputation of a person, the fair trial of a person who has been or may be charged with an offence, or the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made.

[11]Section 20(1) of the Act provides for a notice stating that the summons or order is a confidential document and that it is an offence to disclose to anyone else the existence of the document or the subject matter of the organised crime offence in relation to which the summons was issued, or the order made, unless the person has a reasonable excuse.

Both the Supreme Court and the Chief Examiner retain a discretion to issue a notice if satisfied that failure to do so might be prejudicial for these reasons, or might otherwise be contrary to the public interest.

Part 4 of the Act sets out dispositions relating to examinations. Once a coercive powers order has been received by the Chief Examiner, he or she may conduct an examination of a person to whom a witness summons has been directed.[12] The examinations are not bound by the rules of evidence.[13] Under s 29(2) of the Act,

[t]he Chief Examiner may commence or continue to conduct an examination of a person despite the fact that any proceedings are on foot, or are instituted, in any court or tribunal that relate to or are otherwise connected with the subject-matter of the examination.

[12]Major Crime (Investigative Powers Act), s 29.

[13]Major Crime (Investigative Powers Act), s 30(1).

If the Chief Examiner becomes aware of such proceedings, he or she must take all reasonable steps to ensure that the conduct of the examination does not prejudice those proceedings.[14]
[14]Major Crime (Investigative Powers Act), s 29(3).

Section 39 of the Act provides as follows:
39 Privilege against self-incrimination abrogated
(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.
(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.
(3) The answer, or the document or other thing, is not admissible in evidence against the person in—
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a penalty —
other than —
(c) proceedings in respect of an offence against this Act; or
(d) proceedings under the Confiscation Act 1997; or
(e) a proceeding in respect of —
(i) in the case of an answer, the falsity of the answer; or
(ii) in the case of the production of a document, the falsity of any statement contained in the document.
Under s 31(c) of the Act, the Chief Examiner must
inform the witness that the privilege against self-incrimination does not apply but that there are restrictions on the use that can be made of evidence obtained in the course of the examination or from production of documents in accordance with the witness summons and specify those restrictions.
Turning then to the Charter.[15] For present purposes, it will be sufficient to highlight the particular provisions of the Charter that relate specifically to the issue at hand.
[15]The terms, purpose and effect of the enactment of the Charter were considered at some length by Bell J in Kracke v Mental Health Review Board [2009] VCAT 646, (‘Kracke’).

The purpose of the Charter, as described in s 1(2), is to protect and promote human rights by:

(a) setting out the human rights that Parliament specifically seeks to protect and promote; and
(b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and
(c) imposing an obligation on all public authorities to act in a way that is compatible with human rights; and
(d) requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and
(e) conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

The Charter is not intended to be an exhaustive source of human rights. Section 5 directs that

[a] right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

The Court’s interpretative obligation is set out in s 32:
Interpretation
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
The Court may only limit the extent of a human right in accordance with s 7 in specified terms:

7 Human rights—what they are and when they may be limited
(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

If consistent interpretation under s 32 or reasonable limitation under s 7(2) are not possible, the Court may make a declaration of inconsistent interpretation pursuant to s 36 of the Charter.

Section 24(1) of the Charter contains the ‘Fair Hearing’ right:
A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing
Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled without discrimination to a minimum guarantee ‘not to be compelled to testify against himself or herself or to confess guilt.’

Principle question for determination

The human rights relevant to the making of a coercive powers order arise in ss 24(1) and 25(2)(k) of the Charter, being the ‘fair hearing right’ and the ‘self-incrimination right’ respectively. The self-incrimination right is also commonly referred to as the privilege against self-incrimination (‘the privilege’).

Much of the issue revolves around the use that may be made of evidence that derives from compelled testimony and the extent of the immunity that is required when the privilege is abrogated. Where legislation abrogates the privilege, having the effect that a person will not be entitled to claim the privilege as a reason not to answer questions or provide information even if this tends to prove their own guilt, the legislation may sometimes account for this by restricting the use that may be made of the information by providing an immunity. A ‘direct use’ immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding. A further step or protection is a ‘derivative use immunity’. This immunity operates to insulate the individual from having the compelled incriminating testimony used to obtain other evidence against that person.

Neither party properly addressed the current Victorian evidence statute, the Evidence Act 1958. The intervener adverted in passing to the Commonwealth Act (presumably in anticipation of the Evidence Act 2008 yet to fully operate in Victoria). The applicant made no submissions in this regard. So far as may be relevant, now or later, I observe that direct use and derivative use immunity arise under s 128A(8) of the Evidence Act 1995 (Cth) which provides:

In any proceeding in an Australian court—
(a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and
(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information—cannot be used against the person … However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned (emphasis added).

The present issue may therefore be posed in the following terms: is it lawful, having regard to the directions of the Charter, for the Chief Examiner when exercising his or her functions under the Act, to compel a person who has been charged with an offence to answer questions relevant to the proof of that offence, or offences linked to that offence, which are not for direct use but can lead to derivative use? If it is not lawful, to what extent can derivative use immunity be interpreted consistently with the purpose of the Act? And, if consistent interpretation is not achievable, should the Court issue a declaration of inconsistent interpretation?

Overview of the applicant’s submissions

The applicant made wide ranging submissions. Deciphering them as fairly as I might, the applicant submitted that the Act does not interfere with ss 24(1) or 25(2)(k) of the Charter because those sections do not include, as a part of the human rights they protect, a derivative use immunity of evidence obtained from compelled testimony. The applicant contended that by virtue of s 39, whereby the Act provides a direct use immunity in response to the abrogation of the privilege, the human rights protected by ss 24(1) and 25(2)(k) of the Charter are complied with to the extent that they are protected by the Charter. In arguing against the requirement for derivative use protection, the applicant seems to assume that derivative use protection is absolute; that is, if the Court is to conclude that derivative use immunity is a right that attaches to ss 24(1) and 25(2)(k) of the Charter, the use of the compelled testimony by the investigating authorities would be disallowed in its entirety.

The applicant put forward two contentions as to how the Act should be construed. First, the abrogation contained in s 39 of the Act is an express statutory abrogation of the common law privilege against self-incrimination in terms which are sufficiently clear and manifest for their purpose so as to satisfy the threshold for statutory abrogation as stated by the High Court in Sorby v The Commonwealth[16] and Hamilton v Oades.[17] Secondly, the abrogation allows the unrestricted use of evidence but introduces a prohibition on the direct use of the evidence in s 39(3) of the Act, meeting the requirements laid down by the relevant sections of the Charter. By virtue of there being no prohibition on the derivative use of compelled testimony in the Act, such use is inferentially permitted.
[16](1983) 152 CLR 281, (‘Sorby’).
[17](1989) 166 CLR 486, (‘Hamilton’).

To support its contentions, the applicant relied on the decision of the Court of Final Appeal of the Hong Kong Special Administrative Region in HKSAR v Lee Ming Tee and Ronald Tse.[18] In Lee Ming Tee, it was held that

[w]here … the words of the statute clearly abrogate the privilege and substitute for it a limited direct use prohibition, the privilege is abrogated in its entirety and the scope of the substituted protections becomes a matter of statutory construction.[19]

[18][2001] HKCFA 32 (‘Lee Ming Tee’).

[19]Ibid 35.

The applicant argued that this construction of the Act is not inconsistent with the directions of the Charter because comparative jurisprudence from South Africa, Canada, Hong Kong, and the United Kingdom demonstrates that the rights in ss 24(1) and s25(2)(k) of the Charter do not extend to the derivative use of evidence derived from compelled testimony. In reliance on comparative jurisprudence, the applicant contended, more specifically, that the rights in ss 24(1) and 25(2)(k) of the Charter operate to ensure that an individual is protected from the direct use of evidence (the compelled testimony itself) relating to an offence with which he or she is charged, but do not operate to prevent evidence being compulsorily required from that person where the evidence has an existence independent of the testimony of the accused.

On the applicant’s argument, therefore, a direct use immunity is considered sufficient to uphold the relevant rights. Inconsistency between the Act and the Charter would only occur where the rights included a derivative use immunity which s 39 of the Act failed to provide.

Overview of the intervener’s submissions[20]

[20]Detailed submissions were made by the parties relating to whether a judge of the Supreme Court in making a coercive powers order is acting judicially or administratively pursuant to s 38 of the Charter. Although, this is an important question, it is unnecessary to decide in the present circumstances.

The role of the intervener was to assist the court in relation to the operation of the Charter. Counsel for the intervener informed the Court that, despite certain substantive differences between the Commission and the applicant on the fundamental issues at hand, the intervener’s role was not to contradict the applicant on all issues. Thus, the submissions were confined. The Court was not assisted by a contradictor in the true sense.

The intervener contended that one or both of the rights in ss 24(1) and 25(2)(k) of the Charter include a right not to be required to incriminate oneself such that, where that right is abrogated, the abrogation must be accompanied by both a direct use immunity and a derivative use immunity. To this end, the Act may be reinterpreted pursuant to s 32 of then Charter consistently with its purpose so as to be compatible with the rights in ss 24(1) and 25(2)(k). The intervener proceeded on the basis that if the court was to conclude that derivative use immunity was a right that attaches to ss 24(1) and 25(2)(k) of the Charter, the immunity would protect the individual compelled to give incriminating evidence from the tender of evidence against him or herself that was ascertained or discovered as a result of their incriminating evidence.

The intervener submitted that the primary body of principles to which this court should have regard in interpreting the Charter is the common law. At common law, the privilege is recognised as including both direct and derivative use immunity. The intervener is fortified in that proposition by majority decisions of the Supreme Court of Canada.[21]
[21]R v S(RJ) [1995] 1 SCR 451, (‘S(RJ)’); British Columbia Securities Commission v Branch [1995] 2 SCR 3, (‘Branch’); Phillips v Nova Scotia [1995] 2 SCR 97, (‘Phillips’); Re Application under section 83.28 of the Criminal Code 2004 SCC 42, (‘Re Application’).

The fair hearing right and the self-incrimination right under the Charter

Before proceeding to the interpretative task required by s 32 of the Charter and to a deeper consideration of the submissions of the applicant and intervener, it will be helpful to make some introductory remarks about the rights the subject of this proceeding.

Consistent with the decision of the Victorian Court of Appeal in R v Thomas,[22] the right to a fair hearing in s 24(1) of the Charter reflects a fundamental principle of the common law.[23] In Thomas, the Court held that the established principles of the criminal law are ‘principles which themselves embody important notions of individual rights’.[24]
[22](2006) 14 VR 475, (‘Thomas’).
[23]Dietrich v The Queen (1992) 177 CLR 292.
[24] (2006) 14 VR 475, 510 (Maxwell P, Buchanan and Vincent JJA).

It was acknowledged by Bell J in Tomasevic v Travaglini[25] that the right of every person not to receive an unfair trial is deeply ingrained in the rule of law. His Honour cited the comments of Isaacs J in R v McFarlane; ex parte O’Flanagan:

[That] the elementary right of every accused person to a fair and impartial trial ... exists as a personal right seems to me so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilisation. It is only a variant of the maxim that every man is entitled to his personal liberty except so far as that is abridged by a due administration of the law. Every conviction set aside, every new criminal trial ordered, are mere exemplifications of this fundamental principle.[26]

[25](2007) 17 VR 100, 113.

[26](1923) 32 CLR 518, 541-2.

The majority of the elements that constitute the fair hearing right are expressly guaranteed in ss 25(1) and (2) of the Charter. In Kracke, [27] Bell J, sitting as President of the Victorian Civil and Administrative Tribunal, observed that the provisions of s 25 of the Charter do not derogate from the rights contained in s 24(1), rather, they determine the elements which may constitute a fair hearing under s 24(1). In my view, it would be unhelpful to proceed on the basis that the fair hearing right and the self-incrimination right are separate and unrelated, or that they necessarily require individual analysis. Whilst there may be differences in the expression of similar rights in other jurisdictions, citizens in Victoria must have the right to a fair hearing pursuant to s 24(1) of the Charter, there being a fundamental component of that right in the form of a guarantee in s 25(2)(k) not to be compelled to testify against oneself or to confess guilt. As explained much earlier in time by Winneke CJ and Smith J,

before any person is convicted, it is imperative, if public confidence in the administration of justice is to be maintained, that the conditions essential to a fair trial according to law be strictly observed, one of which is that he may only be convicted on evidence legally admissible against him. If there be no such evidence, then there has been a failure of one of the conditions essential to fair trial according to law.[28]

[27][2009] VCAT 646, [327]; see also R v Williams (2007) 16 VR 168, 180 (‘Williams’).

[28]Chappell v A Ross and Sons Pty Ltd, Maclennan v Hastings Transport Pty Ltd [1969] VR 376, 388.

The self-incrimination right is part of the ‘common law of human rights’ as explained by Murphy J in Hammond v The Commonwealth of Australia:

The privilege against self-incrimination is part of our legal heritage where it became rooted as a response to the horrors of the Star Chamber (see Quinn v United States (1955) 349 US 155). In the United States it is entrenched as part of the Federal Bill of Rights. In Australia it is a part of the common law of human rights. The privilege is so pervasive and applicable in so many areas that, like natural justice, it has generally been considered unnecessary to express the privilege in statutes which require persons to answer questions. On the contrary, the privilege is presumed to exist unless it is excluded by express words or necessary implication, that is, by unmistakable language (citations as in original).[29]

[29]152 CLR 188, 199-200 (Gibbs CJ, Mason, Brennan and Deane JJ agreeing) (‘Hammond’).

The privilege, as a deep-seated fundamental common law right, hardly needs emphasising. It defines the relationship between the individual and the state and protects people against aggressive behaviour of those in authority.[30] The fundamental rationale of the privilege is that those who allege the commission of a crime should prove it themselves and not be able to compel the accused to prove it for them. As explained by Mason, Wilson and Dawson JJ in Sorby,[31] the privilege operates by protecting a witness from being compelled to answer questions, or produce documents, or things, if to do so might tend to incriminate that person. Their Honours held that the privilege

protects the witness not only from incriminating himself directly under a compulsory process, but also from making a disclosure that might lead to incrimination, or to the discovery of real evidence of an incriminating character.[32]

[30]C v Chief Commissionerof Police (2008) 20 VR 174, 180 per Smith J (‘C v Chief Commissioner’).

[31](1983) 152 CLR 281, 310.

[32]Ibid.

Despite the importance of the privilege at common law, it can be abrogated by statute and the right is not protected by the Constitution.[33] For the abrogation to have the appropriate effect, it must clearly represent the unmistakeable intention of Parliament, either by express words, or necessary implication.[34] Once the privilege has been abrogated, all immunity is removed.[35] That said, the court should not impute to the legislature an intention to infringe upon a civil right unless the words of the legislature are expressed with irresistible clarity or necessary intendment.[36] As stated by Brennan J in Re Bolton; ex parte Beane,

[m]any of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much a part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force.[37]

[33]Ibid 298 (Gibbs CJ), 309 (Mason, Wilson and Dawson JJ); Hammond, 200 (Murphy J).

[34]See Plaintiff s157/2000 v Commonwealth (2004) 211 CLR 476, 492 (Gleeson CJ).

[35] Hamilton (1989) 166 CLR 486, 496.

[36]Coco v R (1994) 179 CLR 427, 437.

[37](1997) 162 CLR 514, 520-1.

The authorities make it plain that the privilege is a free-standing human right existing as part of the common law of human rights that may be abrogated by statute either by express intention or necessary implication. Once the privilege has been abrogated, an individual’s right to claim privilege on the grounds of self-incrimination falls away unless immunities are provided by the legislature.

The importance that the privilege finds its source in the common law cannot be overstated. The common law provides the content, scope, purpose and structure of the privilege. The legislature may remove any of these elements but legislation is not the source of the privilege. It is therefore relevant to examine the privilege as it is stands at common law, unimpaired by statutory overlay.

The High Court made significant observations in Reid v Howard[38] clarifying the importance of the privilege as a substantive right and reinforcing the policy that the law favours an immunity from self-incrimination in all the circumstances. This case is especially significant in the Victorian context and the matter before me as I highlight below. Two fundamental principles may be drawn from that case. First, the common law recognises that the privilege against self-incrimination extends to both direct and derivative use. Deane J held in Reid that

[t]he protection which the privilege against self-incrimination confers extends not only to the risk of incrimination by direct evidence (ie evidence of the fact of disclosure and of the material disclosed) but also to incrimination by indirect or “derivative” evidence (ie “evidence obtained by using” the disclosed material “as a basis of investigation”).[39]

[38](1995) 184 CLR 1 (‘Reid’); see also EPA v Caltex (1993) 178 CLR 477, 509 (Brennan J); Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543.

[39](1995) 184 CLR 1, 6.

Deane J cited the comments of Lord Wilberforce in Rank Film Distributors Ltd v Video Information Centre[40] with approval, where his Lordship stated,

whatever direct use may or may not be made of information given, or material disclosed, under the compulsory process of the court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character ... The party from whom disclosure is asked is entitled, on established law, to be protected from these consequences. [41]

[40][1981] 2 WLR 668, (‘Rank Film Distributors’).

[41]Reid (1995) 184 CLR 1, 6 (Deane J, citing Rank Film Distributors [1981] 2 WLR 668, 675-676).

Deane J also agreed with the similar findings in Sorby[42] referred to earlier, regarding the extension of the privilege to the discovery of real evidence of an incriminating character.[43] His Honour’s statements are consistent with the majority judgment of Toohey, Gaudron, McHugh and Gummow JJ in Reid where their Honours held that material disclosed as a result of compelled testimony that might, in turn, provide evidence to support criminal charges was ‘a possibility against which the privilege protects.’[44]
[42](1983) 152 CLR 281, 310.
[43]See para [42] above.
[44](1995) 184 CLR 1, 15.

The second principle which may be drawn from Reid is that there is no scope for an exception to the privilege, other than by statute: ‘at common law, [the privilege] is necessarily of general application — a universal right which … protects the innocent and the guilty.’[45] The Court acknowledged that the privilege may be abridged by statute or waived but ‘that aside, it has generally been accepted that it is without real exception’.[46]
[45]Ibid 14.
[46]Ibid 12; the principles in Reid have been consistently applied throughout Australia, including in Eizenberg v Eizenberg [2008] VSC 322 (Hargrave J); see also Pathways Employment Services v West [2004] NSWSC 903.

Observations on statutory construction in the context of the Charter

The interpretative obligation in s 32 of the Charter creates a new dynamic for the interpretation of legislation. In short, there is no single way to approach the interpretative task. It is apparent, however, that such consideration is now necessary in Victoria.[47] Of course, the ordinary principles of statutory construction are to be applied.
[47]RJE v The Secretary to the Department of Justice [2008] VSCA 265, 105 per Nettle JA (‘RJE’).

Following the direction provided by the Court of Appeal in RJE, the first step is to ascertain the ordinary meaning of the legislation according to normal principles of statutory construction and to determine whether a result may be reached without recourse to the Charter. In many instances, it may be possible to reach an appropriate conclusion without reference to the Charter.[48] This reflects the view that the character of human rights adjudication in the Charter mirrors the already well developed human rights jurisprudence at common law. This point was made recently by Maxwell P speaking extra-curially,[49] where he suggested that the task assigned to the court in s 32 of the Charter is ‘as old as the common law itself’.[50]
[48]See R v Benbrika (2008) 18 VR 410, 428.
[49]The Hon. Justice Maxwell, ‘The Victorian Charter of Human Rights and Responsibilities so far: a judge’s perspective’ (Speech delivered at the 2009 Castan Centre Conference, Melbourne, 17 July 2009).
[50]Ibid 2.

It is axiomatic that courts will interpret legislation in a way that protects common law rights and in a manner that produces the least infringement where those rights are being limited.[51] Rights, freedoms and immunities appropriately recognised as fundamental will not be taken to be abolished, suspended or adversely affected in the absence of ‘a clear expression of an unmistakable and unambiguous intention’.[52] In judging whether a right is fundamental, regard might be had to any relevant constitutional or statutory provisions and to the common law.[53] The special dynamic might be said to arise from s 32(2) of the Charter which expressly permits the court, when interpreting a statutory provision, to consider ‘international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right [under consideration]’.[54]
[51]Sorby (1983) 152 CLR 281, 289 (Gibbs CJ).
[52]Coco v R (1994) 179 CLR 427, 438.
[53]Swaffield v R (1998) 192 CLR 159, 213 (Kirby J).
[54]Cf Al-Kateb v Godwin (2004) 219 CLR 562, 590 (McHugh J).

Where a result cannot be achieved in the usual course of interpretation, and recourse to the Charter is necessary, a variety of interpretative methods have been applied.[55] In RJE, Nettle JA endorsed the approach of Mason NPJ in HKSAR v Lam Kwong Wai[56] for its simplicity.[57] It is an approach I would apply and which will be significant later in my reasons as to the construction and application of s 7 of the Charter. Mason NPJ said in Lam Kwong Wai:

Our first task is to ascertain the meaning of [the relevant statutory provisions] according to accepted common law principles of interpretation as supplemented by any relevant statutory provisions. Our second task is to consider whether that interpretation derogates from [the rights in question] as protected by [the Charter]. If that question is answered ‘Yes’, we have to consider whether the derogation can be justified and, if not, whether it could result in contravention of the [Charter] … and consequential [reinterpretation of the legislative provision consistently with the purpose of the Act or a declaration of inconsistency].[58]

What is the ordinary meaning of the legislation and can a result be reached without recourse to the Charter?

[55]See Poplar Housing and Regeneration Community Assn Ltd v Donoghue [2002] QB 48, (‘Poplar’); R v Hansen [2007] 3 NZLR 1.

[56][2006] HKCFA 84, 29 (‘Lam Kwong Wai’).

[57][2008] VSCA 265, 116.

[58][2006] HKCFA 84, 29.

I adopt Smith J’s construction of the Act in C v Chief Commissioner in which his Honour held,

the Act provides that no rules of evidence apply and no rules apply as to the manner of the questioning. The hearings are held in private. A person who fails to attend an examination or, having attended, refuses or fails to answer questions or refuses or fails to produce documents or things without reasonable cause is liable to a maximum term of imprisonment of five years …

The privilege against self-incrimination is abrogated by s 39 with the result that a person who receives a witness summons is not excused from answering questions, giving information or producing documents or other things at an examination on the ground that to do so might tend to incriminate that person or make that person liable to a penalty. The Act, however, limits the effect of the abrogation of the privilege against self-incrimination by providing that any answer or document or other thing produced is not admissible against the person in question in a criminal proceeding or penalty proceeding …
It is important to note other limits of the protection given. It does not extend, for example, to prevent the use against the person examined, in criminal or penalty proceedings against that person, of information or other evidence derived from the evidence, document or thing given by the person in the examination …
To the extent that the evidence, information or documents produced in an examination can be used to gather evidence to use against the person summoned, the privilege is effectively removed.[59]

[59](2008) 20 VR 174, 178.

Despite the Act being silent on the derivative use of evidence, Smith J points out that derivative evidence is inferentially permitted, consistent with Parliament’s intention as expressed in the Second Reading Speech for the Act which states,

[t]he limitation on the use of information or evidence obtained will not extend to the use of other information or evidence derived as a result of those answers in a criminal prosecution against the witness, nor the use of those answers in a prosecution against a third party. Whether the evidence can be used in other proceedings will depend upon the admissibility of that evidence as determined in accordance with the ordinary rules of evidence.[60]

[60]Victoria, Parliamentary Debates, House of Assembly, 5 October 2004, 615 (the Hon. Sherryl Garbutt, Minister for Community Services).

This is also consistent with the principle that abrogation operates so as to remove all aspects of the privilege, leaving no immunity other than that for which the statute provides. It is apparent that under the ordinary meaning of the Act, the common law privilege is removed entirely, and is replaced only by a limited immunity in s 39(3) of the Act. This much was common ground between the parties.

The ordinary meaning of the legislation being so, are other means available that remove the necessity to turn to the Charter? In this regard, the applicant presented two lines of argument in support of an overall contention that the fair hearing right is best protected by the court at the hearing stage. The first is based on the statements of the High Court in Hammond[61] concerning the court’s inherent power to prevent interferences with the course of justice. The second, relates to the trial judge’s inherent discretion to exclude prejudicial or unfair evidence in the interests of securing the fairness of a trial.
[61] (1982) 152 CLR 188.

Hammond stands for the principle that a person committed to stand trial upon a criminal charge must not be subjected to compulsory interrogation designed to obtain information from him as to the issue to be litigated at his trial. The case concerned the ability of a Commonwealth Royal Commission to compel a witness, Hammond, to give evidence relating to matters with which he had been charged and for which he was awaiting trial in Victoria, in circumstances where the Commissioner had directed Hammond to answer questions as to facts directly relevant to the issues to be litigated on the hearing of the charge against him. Hammond objected to giving evidence on the ground that he might incriminate himself. The evidence called plainly related to the alleged crime upon which Hammond had been committed for trial. Hammond sought injunctive relief on a number of grounds, including to prevent the Commissioner further examining him until the completion of the trial in Victoria.

The High Court granted an injunction on the following basis:
Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow … that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in details, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.[62]
[62]Hammond (1982) 152 CLR 188, 198 (Gibbs CJ; Mason, Murphy, Brennan and Deane JJ agreeing).
The Court came to this conclusion without reference to the privilege against self-incrimination. Murphy J held,

[Hammond] is awaiting his trial on indictment for conspiracy against the laws of the Commonwealth. He has a constitutional right to trial by jury (see Constitution, s 80). It is inconsistent with that right that he now be subject to interrogation by the Executive Government or that his trial be prejudiced in any other manner. I would take this view whether or not he has privilege against self-incrimination.[63]

[63]Ibid 201.

The applicant relies on Hammond to assert that the Supreme Court, in its inherent jurisdiction, can make orders to prevent the interference with the course of justice in circumstances such as those identified in Hammond. There is little doubt that the court possesses such power and it is equally clear that neither Parliament nor the Executive is competent to prevent or prejudice the exercise by a court of judicial power in a way that would ordinarily constitute contempt of court.

It is theoretically possible that the process of investigation under the Act may, in certain circumstances, amount to an interference with the due administration of justice or constitute contempt of court, notwithstanding that the initial investigative process is valid and unobjectionable. However, it is far more likely that the circumstances in Hammond never arise in the course of an investigation under the Act.

The extent to which the law in Hammond may apply would be limited to instances where a person had been charged and was awaiting trial to then be summoned by the Chief Examiner to answer questions, the answers to which relate to the subject matter of the impending trial, thus creating a ‘parallel non-judicial inquiry that follows the general form of a criminal trial, shorn of some of the privileges and safeguards, such as absence of compellability of an accused and observance of the ordinary rules of evidence, which protect an accused on trial in a court of law’.[64] For the sake of example, such a situation might arise where a person has been charged with murder and a trial is under way to determine that charge in a court of law. Pursuant to a pre-existing coercive powers order, the Chief Examiner summons the accused and compels him or her to answer questions about that specific charge of murder, the answers to which directly incriminate the accused. It seems to me that this eventuality is not only improbable but outside the parameters of the current issue for determination.
[64]Ibid 207 (Deane J).

The applicant asserted on a number of occasions that the Act contemplates that a person may already be charged. It is not clear why this is so. In fact, the Act does not require that a witness ever be charged, and it is plain from the provisions of the Act that obtaining a coercive powers order is not conditional on a person being charged. Hammond can only apply where a person has been charged.[65]
[65]See A v Boulton [2004] FCA 0056.

Hammond must be understood in the context in which it was decided. The decision does not stand for a general power of the court to injunct investigative authorities who appear to pervert the course of justice merely because the investigative process that those authorities are applying mirrors that of eventual court proceedings. The mere fact that proceedings are pending in a court does not mean that any parallel or related inquiry, conducted for proper purposes, constitutes in itself an interference with the due administration of justice even where the court is hearing matters which are based on the subject matter of such inquiries.[66] The possible interference with the administration of justice must be understood in the following way:

it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the Criminal Court. Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes … an improper interference with the due administration of justice … and contempt of court.[67]

[66]Hammond (1982) 152 CLR 188, 206 (Deane J).

[67]Ibid.

The protection afforded by Hammond concerns the direct use of evidence relating to offences with which a person has been charged. By this present application, I am concerned with the use of derivative evidence, obtained from a person charged with an offence who has been questioned and who has provided information about offences linked to the offence with which he or she has been charged.

The applicant’s second argument is also problematic. At common law, the trial judge retains a number of residual discretions to exclude evidence at trial in certain circumstances. A trial judge may exclude evidence on the ground that the effect of the evidence outweighs its probative value. So far as may be relevant later, a similar discretion is contained in the Evidence Act2008 (‘the Evidence Act’).[68] A trial judge also retains a residual discretion to exclude evidence if receipt of the evidence would result in an unfair trial. That discretion is rarely exercised outside the context of confessions.[69] Similarly, the Evidence Act directs that evidence of an admission may be excluded if ‘having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence’.[70] Finally, there is a common law discretion to exclude illegally or improperly obtained evidence.[71]
[68]Evidence Act 2008, ss135, 137 (Note: The Evidence Act 2008 has not yet wholly come into operation. Transitional arrangements are yet to be introduced into Parliament).
[69]Rozenes v Beljajev [1995] 1 VR 533, 549.
[70]Evidence Act 2008, s 90.
[71]Bunning v Cross (1978) 141 CLR 54; Cleland v R (1982) 151 CLR 1.

These discretions do not focus on the way in which the evidence in question was obtained, but rather on whether the use of the evidence is prejudicial or unfair, for example because the evidence is unreliable.[72] Whilst it is recognised that a trial judge is able to exclude derivative evidence on any of these bases, such exclusion remains entirely discretionary, there being no guarantee (as required by s 25(2)(k) of the Charter) that the discretion will be exercised in any given instance.
[72]See for example Driscoll v R (1977) 137 CLR 517.

The ordinary rules of evidence very often would not exclude derivative evidence of the kind that is likely to arise in the process of an investigation to which a coercive powers order relates. There do not appear to be any reported cases where derivative evidence has been excluded for such reasons. The unfairness discretion contemplates confessions, which are ‘direct’ in nature, and therefore inadmissible in any case. It is highly unlikely that derivative evidence obtained under the Act would be excluded because it was obtained illegally; any such evidence would necessarily have been obtained legally pursuant to clear statutory authorisation under the Act.

The difficulty with the applicant’s submission may be clarified by way of a hypothetical scenario. Let it be assumed that the investigative authorities have located amounts of methyl-amphetamine and a methyl-amphetamine manufacturing facility. They are investigating other possible manufacturing facilities involving suspects A, B and C. They have charged A with trafficking in a drug of dependence[73] but lack sufficient information to charge B and C.
[73]Pursuant to s 71AC of the Drugs, Poisons and Controlled Substances Act1981 which carries liability to level 4 imprisonment to a maximum of 15 years.

The investigative authorities then obtain a coercive powers order in relation to the trafficking of a drug of dependence. The Chief Examiner issues a summons to A to appear and give evidence. In the course of questioning by the Chief Examiner, A is asked whether there are other facilities involving B and C and, if there are, where these are located. A answers the question, as required under the Act, and the Chief Examiner shares this information with the investigative authorities, as entitled to do so under the Act.

On the basis of A’s answer, the investigative authorities locate a large quantity of methyl-amphetamine and a number of other manufacturing facilities. A’s fingerprints and DNA are found on objects at these sites. The objects on which the fingerprints and DNA are found are derivative evidence.

Having located the derivative evidence, the investigative authorities are now satisfied that A has engaged in more serious crimes than that with which already charged and proceed to charge A with the far more serious offence of trafficking in a large commercial quantity of a drug of dependence.[74]
[74]Pursuant to s 71 of the Drugs, Poisons and Controlled Substances Act1981 which carries liability to level 1 imprisonment (life imprisonment).

At A’s trial, the answers given to the Chief Examiner are not admissible. In any event, the answers would demonstrate only that A knew where B and C were manufacturing methyl-amphetamine, not that A was involved in that manufacture. However, the prosecution seeks to tender the derivative evidence, that is, the fingerprints found at the various sites. The evidence is prima facie admissible; it is relevant, probative and does not constitute hearsay. On the applicant’s submission, it is unclear how or why any of the common law discretions so described would operate so as to exclude the evidence. It is even more perplexing why the law in Hammond would change this outcome.

The applicant may suggest that where derivative evidence had been obtained in a way that would jeopardise a fair hearing, the trial judge would simply know to exclude the evidence. This argument must be dismissed. There is a prospect that the derivative evidence will be admitted and that, as a result, A will be convicted and punished for a crime at a significantly higher penalty than the charge originally faced as a result of his or her compelled testimony. The submission also overlooks a long established principle that the privilege is not a rule of evidence.[75] The applicant may also suggest, on the basis of the hypothetical example provided, that exclusion of such evidence would not be required to uphold A’s rights. This is a separate issue altogether with which I will deal in due course.
[75]Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 340-341 (Mason ACJ, Wilson and Dawson JJ); Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 508 (Mason CJ and Toohey J).

Viewed more broadly, the applicant’s proposed alternative is problematic because the focus of the common law discretion is on ensuring that a trial is not unfair, which is not coextensive with the right to a fair hearing that is protected by the Charter. The distinction was highlighted by Higgins CJ in R v DA which concerned the fair hearing right in the Human Rights Act 2004 (ACT):

The case of Dietrich v The Queen (1992) 177 CLR 292 indicates there is recognised at common law a right to not have an unfair trial, which is different from s 21 of the Human Rights Act 2004 (ACT) which confers a right to a fair trial. That is a very different emphasis. It seems to me that activates the remarks that Kirby J made in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 where his Honour departed from the approach of the other members of the Court on that very distinction. The majority were looking at the question of the right to avoid, in respect of a trial, unfairness. His Honour referred to various Human Rights Conventions, including the International Covenant on Civil and Political Rights (ICCPR) upon which the Human Rights Act 2004 of this Territory is based, and as a result held that there is, or ought to be, a right recognised under common law to a fair trial.[76]

[76][2008] ACTSC 26, [7].

If a legislative regime of judicial supervision operated under the present Act, the applicant’s argument may be persuasive. The court has no supervisory role in making a coercive powers order (although the court has inherent power to recall, vary and even revoke an order). Once the coercive power has been made, the matter moves away from the direct oversight of the court, unless an applicant or an individual chooses to bring it back to the court. Practically speaking, the Supreme Court may never see the matter again, especially if a future trial takes place in a court of different jurisdiction. There is no meaningful ability for the court to supervise the conduct of examinations and the subsequent use of evidence arising from them, and there is no guarantee that the normal rules of evidence would apply.[77]
[77]See Major Crime (Investigative Powers Act), s 30(1).

Whether a result can be achieved without reference to the Charter must be answered in the negative. As it stands, the Act abrogates a privilege normally upheld at common law, and provides a direct use immunity. I do not accept the applicant’s submission that the residual discretion of a trial judge to exclude evidence is a sufficient mechanism for upholding the rights contemplated by the Charter. It is coupled with too much uncertainty from the point of view of the bearer of the rights. As the applicant’s argument is based on the inherent discretion of the court, it has the effect that the self-incrimination right may be protected at a later point in time, not that it will be protected universally. It is not clear that the common law discretion to exclude evidence[78] would operate as strongly to protect against incriminating derivative use as the Charter requires.
[78]nor the statutory discretion set out in the Evidence Act once that Act comes into force in Victoria.

The question, then, is whether the abrogation, which is within legislative power, is consistent with the Charter. The applicant would have the court cease its analysis at this stage, but the fundamental question is whether the law as it stands is sufficient or whether, in addition, a derivative use immunity is required in order for the legislative regime to be compatible with the Charter.

Does the Act limit rights?

Whether the Act limits rights is the critical disagreement between the parties. As already observed, human rights should be construed in the broadest possible way. The purpose and intention of Parliament in enacting the Charter was to give effect to well recognised and established rights in the criminal justice system.[79] The Charter should be construed in a way that is consistent with, and gives effect to, the right against self-incrimination. It should not be assumed that the Charter has narrowed traditional common law rights. Rather, the Charter’s protection of the right against self-incrimination is at least as broad as the traditional common law right not to have an unfair trial and the right not to incriminate oneself. The Charter supports the approach that rights should be construed in the broadest possible way before consideration is given to whether they should be limited in accordance with s 7(2) of the Charter. That section serves the purpose of mitigating any damage to society that may arise from upholding an individual’s right.
[79]Victoria, Parliamentary Debates, House of Assembly, 4 May 2006, 1292 (the Hon. Rob Hulls, Attorney-General) (‘Charter Second Reading Speech’).

As I have already observed, the common law operated so that a person was not compelled to answer or respond in a way that would incriminate him or herself. If a person was not compelled to answer, by virtue of the right not only could their answer not be used against them, nor could any evidence derived from it, simply because there was no such evidence. As a matter of logic, the common law provided both direct and derivative immunity because a person could not be compelled to answer. Therefore, neither an individual’s answers nor any information derived from those answers could be used against that individual.

In this regard, the applicant’s reliance on Sorby[80] and Hamilton[81] is misconstrued. Sorby dealt with complicated issues arising from a Commonwealth Royal Commission as to whether there was abrogation of the privilege under various Commonwealth and Queensland statutes. Hamilton also dealt with abrogation of the privilege in the context of the Companies (New South Wales) Code. Both cases were principally about whether the privilege against self-incrimination can be abrogated and the consequences of the abrogation. The cases are of little assistance in determining whether the abrogation is consistent with the Charter. In Hamilton, Mason J said, ‘the inherent power [of the court] is not a charter which enables a court to turn its back on the statute’.[82] This remark was, of course, made in the context of s 541 of the Companies (New South Wales) Code, which provided for court supervised questioning of the witness. To the extent the applicant relies on Hamilton to submit that the court’s inherent power enables it to protect the fair hearing right, it must be understood that this court has no specific power under the Act. It is difficult, in the circumstances, to extract guidance from the reasoning in Sorby or Hamilton which were concerned with differently cast statutes.
[80](1983) 152 CLR 281.
[81](1989) 166 CLR 486.
[82]Ibid 499.

The applicant’s contention seems to be that these authorities have changed the nature of the privilege at common law. On proper analysis, the effect of the applicant’s submission is that in relation to the right not to incriminate oneself, the protection that the Charter offers is narrower than the common law. In my view, this proposition is misconceived. What the applicant’s submission does demonstrate, however, is the unique position the court now finds itself in. It is clear that the statute can abrogate the right without providing any immunity, and that this is within legislative power. However, it is unclear what constitutes abrogation within power now that such abrogation must meet the requirements of the Charter.

It is not an ordinary step to require an accused person who is already charged with a criminal offence to attend before a person investigating the crimes for which that person may have been charged, and to require that person to answer questions without some appropriate guarantees that their answers will not be used against them. The way the Act is currently applied is a breach of ss 24(1) and 25(2)(k) of the Charter because no distinction can meaningfully be drawn between the harm that may flow from incriminating information provided directly and incriminating evidence derived from such information. From the witness’s perspective, derivative information can present consequences as damaging as the original, self-incriminating information. An answer compelled from a witness, although not itself available to be used, could point investigators in a direction allowing them to obtain admissible evidence against that person. In such a way, in truth, the accused person will have been forced to testify against him or herself and in effect to confess guilt contrary to the requirements of the human right.

I have already set out one hypothetical example that demonstrates some of the difficulties that may arise from the use of derivative evidence. Other problems can also be envisaged.

Let it be assumed that an individual is charged with drug trafficking charges and is compelled to answer questions. As a result of the answers given, the identity of other individuals is brought to light. The investigators subsequently investigate and question those individuals, revealing information that would otherwise be admissible to implicate the first person on a totally unrelated charge of murder. As a result of the compelled testimony, the individual may be convicted of a far more serious offence. The issues that arise in this scenario are similar in nature to those which may arise from third party testimony.

Let it be assumed that the police suspect a group of persons of involvement in organised crime. They seek and obtain a coercive powers order in relation to the crime concerned. The Chief Examiner then issues a summons to X to give evidence in relation to the crime, as he is of the view that X has relevant evidence to give.

In the course of questioning, X identifies several persons he or she says have been involved in organised crime offences. One of those identified was not a person previously known to the police, Y. As a result of X’s testimony, the Chief Examiner issues a summons to Y to give evidence. In the course of Y’s evidence, he or she implicates X in relation to an offence involving assault.

As a result of Y’s testimony to the Chief Examiner, the police charge X with intentionally causing serious injury pursuant to s 16 of the Crimes Act1958.[83] At trial, the prosecution seeks to call Y to give evidence of X’s involvement in the offence (the derivative evidence). X objects to the admission of Y’s evidence, on the ground that it was obtained solely as a result of X’s compelled testimony.
[83]Carrying a maximum term of 20 years.

From the point of view of the evidence which may be admissible at trial against X, the answers X gave to the Chief Examiner are not themselves admissible. Y’s answers to the Chief Examiner’s questions are also likely to be inadmissible, as they may constitute hearsay. However, on the assumption that Y can give direct evidence of X’s commission of the offence, the derivative evidence is relevant, probative and does not constitute hearsay. It is, therefore, prima facie admissible.

Another example of derivative evidence that may be admitted at the trial of a person compelled to testify against him or herself is the example of the computer encryption key.[84] Let it be assumed that the investigative authorities discover Z in possession of a computer that they have reasonable grounds to believe contains evidence relating to an organised crime offence. The data on the computer cannot be read without the encryption key. The police seek and obtain a coercive powers order and the Chief Examiner issues a summons to Z to testify. At the return of the summons, the Chief Examiner asks Z to reveal the encryption key. As required by the Act, Z answers the question and the Chief Examiner shares this information with the police.
[84]A computer encryption key is similar to a computer password which cannot be bypassed to access the encrypted data on the computer: see R v S and A [2008] EWCA Crim 2177.

On the basis of Z’s answer, the police are able to examine the data on the computer and they obtain incriminating derivative evidence which could not have been obtained without Z’s compulsory testimony. The police are now satisfied that Z has committed an offence and he is charged. As with the previous examples, the derivative evidence is prima facie admissible, the result of which may be that Z is convicted of an offence as a result of his own compelled testimony.

A similar example can be envisaged in relation to the location of a missing person presumed murdered, whom the police believe is missing as a result of an organised crime offence. Let it be assumed that the investigative authorities suspect X in the involvement of the person’s disappearance. The police seek and obtain a coercive powers order and the Chief Examiner issues a summons to X. At the return of the summons, the Chief Examiner asks X about the whereabouts of the missing person. X informs the Chief Examiner that the person is deceased and that the body is buried in a remote and densely forested expanse of terrain.

Until X’s testimony, there was no possibility that the investigators would have been able to uncover the location of the body. In fact, they did not know that the body had been buried at all. As a result of the derivative evidence coming to light (the fact of a body being buried at that location) the police are then able to embark upon a source of inquiry. The key link is X’s compelled testimony. As a result of X testifying as to the location of the buried body, it is likely that other evidence will be found and that X will be convicted as a result of what of he or she was forced to divulge to the Chief Examiner.

These examples demonstrate that, as matters currently stand, the Chief Examiner is able to obtain the benefit of the original abrogation and to use it against the witness, while still complying with the requirements of the use immunity. Derivative use of the information can have the same consequences for the witness as would use of the original information. This is the fundamental problem posed by the Act with regard to the rights under the Charter. The problem was raised with counsel for the applicant a number of times but was not adequately answered. In my view, Parliament cannot be understood as having enacted organised crime legislation in such a way as to provide a ‘back-door’ to prosecuting authorities to use compelled incriminating testimony against the testifier.

Despite the difficulty of the problem, it is not clear from the terms of the Charter, nor from any extrinsic materials, as to what form of immunity must be provided when the privilege against self incrimination is abrogated so as to comply with the right against self-incrimination. Section 32 directs that the court may draw from the judgments of domestic, foreign and international courts and tribunals relevant to the human right in question. The power to do so is exercised at discretion.[85] The novelty of the issue requires analysis of foreign law. The parties were unable to assist me with any relevant Australian authority for this purpose. I am of the view that assistance may be gained from international and comparative approaches to determine how to address the problem faced.
[85]Interpretation of Legislation Act 1984, s 45(1).

The approach to the right to a fair hearing and the right against self-incrimination in other jurisdictions is not uniform. Some jurisdictions require a derivative use immunity for consistency with rights (Canada[86] and the United States[87]); others do not (South Africa[88] and Hong Kong[89]). Others are yet to adopt a clear position (International Covenant on Civil and Political Rights and Europe[90]). The applicant submitted that by virtue of the nature of the human rights instruments in some jurisdictions being constitutional in effect (conferring power on the courts to invalidate laws inconsistent with the human right in question), this court should not have regard to jurisprudence flowing from these instruments. It seems to me that the only difference of importance between such instruments and the Charter is in the remedial powers of the courts under such instruments. This fact alone should not impact on the question of whether jurisprudence from these jurisdictions may be of assistance in determining comparable principle.
[86]See Re Application 2004 SCC 42.
[87]See Kastigar v United States 406 US 441 (1972).
[88]See Ferreira v Levin [1995] ZACC 13.
[89]See Lee Ming Tee [2001] HKCFA 32.
[90]See Saunders v United Kingdom (1997) 23 EHRR 313 (‘Saunders’) where the European Court of Human Rights commented that the right not to incriminate oneself did not extend to preclude obtaining compulsory evidence such as documents, breath samples, fingerprints, blood and urine samples and tissue samples. But it did not express any opinion on the issue of derivative use immunity in relation to compulsory questioning.

The applicant contends that comparable principle is found in the Hong Kong case of Lee Ming Tee.[91] That case concerned two individuals charged with conspiracy and publication of a false statement of account. The charges related to the issue and placement of a substantial number of shares in several of the companies in which the accused where board members.
[91][2001] HKCFA 32.

Some time before criminal proceedings were instituted against the accused, the Hong Kong Financial Secretary appointed an inspector pursuant to powers in the Companies Ordinance, to investigate and report the affairs of these companies, including the share placement transaction performed by the accused. The accused were compulsorily questioned and provided materials relating to the subject matter of the questioning. In the lead up to the publication of a report on these matters, the criminal proceedings against the accused were stayed by a judge at first instance for a variety of reasons, one of which included the inability for the accused to receive a fair trial due to compelled testimony provided to the inspector.

On appeal to the Hong Kong Final Court of Appeal, a number of certified questions were formulated for determination including the following:

In the context of materials obtained by the inspector what within the criminal process is the scope of the privilege against self-incrimination? In particular, does it encompass derivative use immunity?[92]

[92]Ibid 4.

Specifically, the issue was whether the Hong Kong Financial Secretary was entitled to hand over the compulsorily obtained materials to the prosecuting authorities and, whether the authorities were entitled to use the materials to acquire evidence for the prosecution of the accused from other sources.

It was not in question that the ordinance empowering the Hong Kong Financial Secretary to investigate abrogated the privilege against self-incrimination. The abrogation took effect in the same way as the Victorian Act, first by providing that a person was not excused from answering a question put to him by an inspector on the ground that the answer might tend to incriminate him, and secondly, by providing that if the person claimed the privilege before answering then, although an answer must nevertheless be given, the ordinance replaced the privilege with a direct use prohibition.

The question for the court was whether a free-standing derivative use immunity capable of surviving statutory abrogation of the principle operated at common law. The leading judgment was delivered by Ribeiro PJ[93] who concluded that derivative use immunity does not exist as a free-standing common law concept or doctrine:

[w]here the privilege against self-incrimination is overridden, in the absence of any binding restriction on use … self-incriminating answers thereby obtained are subject to unrestricted use. Where the use prohibition or restriction conferred in place of an abrogated privilege is limited, other use is inferentially permitted. Accordingly, in the present case, as a matter of statute and common law, the prosecution was entitled to make derivative use of the company inspection materials handed to the police by the Financial Secretary.[94]

[93]With Li CJ, Bokhary, Chan PPJ and Mason NPJ agreeing.

[94]Lee Ming Tee [2001] HKCFA 32, 40.

Ribeiro PJ held that in the context of statutory abrogation of the privilege, immunity did not arise by common law, but by statute as a matter of statutory construction. In overturning the decision at first instance, Ribeiro PJ referred to the ‘strong persuasive authority’ of Hamilton.[95]
[95]Ibid 32.

Ribeiro PJ drew on various common law doctrines and watershed decisions in support of there being no freestanding derivative use immunity.[96] First, Ribeiro PJ found that the common law itself allows the use of derivative evidence even where its source is an inadmissible confession:

[t]he common law in this area of the law of evidence [deals] with the situation where (i) an accused’s privilege against self-incrimination has been unlawfully abrogated by a confession being improperly obtained from him; (ii) the common law imposes a direct use prohibition by excluding the involuntary confession as inadmissible; but (iii) the common law admits independent evidence against the accused even though it is derivative evidence obtained by using the excluded confession (subject always to the court’s general residual discretion to exclude evidence where this is necessary to secure a fair trial for the accused).[97]

[96]Citing R v Sang [1980] AC 402; HKSAR v Lam Tat Ming [2000] 2 HKLRD 431; R v Hertfordshire County Council, Ex parte Green Environmental Industries Ltd [2000] 2 AC 412.

[97]Lee Ming Tee [2001] HKCFA 32, 36.

Secondly, Ribeiro PJ referred to the judgment of Lord Wilberforce in RankFilm Distributors,[98] holding that his Lordship’s statements support that there is no residual common law derivative use immunity.[99] Ribeiro PJ pointed out that the House of Lords, in protecting a party from derivative use of information, was responding to a submission by the plaintiff in that case in favour of treating the privilege as abrogated on the basis of an undertaking that the information would not be used in criminal proceedings. Due to the House of Lords deciding in Rank Film Distributors that the privilege should not be abrogated at all, thus protecting the defendant from both direct and derivative use of any answer, the decision demonstrates that a judicial order to the contrary would abrogate the privilege in its entirety, leaving no residual immunity, a possibility the House of Lords was trying to avoid. It is implicit in RankFilm Distributors, that an abrogation of the privilege against self-incrimination, even if accompanied by an undertaking against use in future prosecution, would not prevent derivative use.[100]
[98][1981] 2 WLR 668.
[99]Ibid 37.
[100]ATT Istel Ltd v Tully [1993] AC 45 was also cited in support of this proposition. The High Court dismissed this case in Reid (1995) 184 CLR 1, 15.

Having established the ordinary meaning of the legislation, Ribeiro PJ turned his attention to the self-incrimination right as it is expressed in article 11(2)(g) of the Hong Kong Bill of Rights (‘Rights Ordinance’). That article provides:

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality …
(g) not to be compelled to testify against himself or to confess guilt.

Ribeiro PJ identified the common law privilege as ‘a general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them’,[101] and held that

[a]rticle 11(2)(g) … only applies to persons who face a criminal charge and the immunity then conferred is only a testimonial immunity, namely, the right ‘not to be compelled to testify against himself or to confess guilt’. It is therefore of a much narrower scope than the common law privilege against self-incrimination and had no application at the time of the company inspection since neither respondent had been charged at that time.
…
Derivative use of independently obtained evidence, even if obtained pursuant to clues provided by the compelled testimony falls outside the purview of Article 11(2)(g) since, in adducing such independent, albeit derivative, evidence, the prosecution does not seek to compel either respondent to testify against himself or to confess guilt.[102]

[101]Citing R v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1, 30.

In assessing the four categories of derivative evidence, Iacobucci J held that, in Canada, the accused must be protected from derivative evidence of the nature of category (1):

[D]erivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness, ought generally to be excluded under s. 7 of the Charter in the interests of trial fairness. Such evidence, although not created by the accused and thus not self-incriminatory by definition, is self-incriminatory nonetheless because the evidence could not otherwise have become part of the Crown’s case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet.[126]

[126]Ibid 561.

His Honour also observed that a derivative use immunity could, by parity of reasoning, be found in s 11(d):

I have developed a residual derivative-use immunity with primary regard for s. 7 of the Charter. However, as La Forest J. observed in Thomson Newspapers, to the extent that it is a concern for trial fairness which predominates the analysis, the analysis could properly proceed with reference to the more specific language of s. 11(d). But since the same issues would fall to be considered under either provision, I think an examination under s. 7 is sufficient—if not exhaustive—in this case.[127]

[127]Ibid 564.

The ‘but-for’ test developed in S(RJ) operates so as to require an immunity in relation to evidence that could not have been obtained, or the significance of it appreciated, but for the compelled testimony of the accused.

I note that in S(RJ), the question before the court was whether an accused person, separately charged with an offence, was compellable as a witness in the criminal trial of another accused charged with the same offence. It was contended by the witness that to compel him to testify at his co-accused’s trial would violate the principle of fundamental justice under s 7 of the Canadian Charter. The Court was primarily concerned with the compellability of the witness and the Canadian Evidence Act 1985, which governs the use of evidence in judicial proceedings. Four justices (as reflected by Iacobucci J’s reasons) accepted that the derivative use immunity required by the Canadian Charter did not have to be expressly contained in the local Evidence Act, but was sufficiently protected by the judge’s discretion to exclude evidence. The fundamental difference is that the precedent established in S(RJ), being a constitutional determination requiring derivative use immunity in the form described, empowered the trial judge to exclude evidence on that basis, as opposed to the current limitations the trial judge faces at common law as previously discussed.

I am encouraged in my conclusion by the Canadian Supreme Court decision of Re Application[128] on which the intervener relied for its parity with the issue before me. In Re Application, the court considered the constitutional validity of s 83.28 of the Criminal Code which provided for an order that a named person attend a judicial examination in relation to suspected terrorism offences. The court explained the operation of s 83.28 as follows:

Section 83.28 provides for a two-stage process, whereby an order for the gathering of information from a named individual is first issued, and an examination of the individual so named is subsequently held. The provision provides a series of parameters which govern the judicial investigative hearing. At its core, s. 83.28 permits the investigation of terrorism offences, at both a pre- and post-charge stage through testimonial compulsion on the part of the named witness. Consequently, the purpose of the provision is to confer greater investigative powers upon the state in its investigation of terrorism offences.[129]

[128]2004 SCC 42.

[129]Re Application 2004 SCC 42, 30.

The regime in issue is similar to the regime under the Act, except that s 83.28 provides for both direct use immunity and derivative use immunity in relation to compelled testimony. A notable difference between the two regimes, however, is that s83.28 provides for judicial supervision of the execution of the order.

The court went on to consider whether the compulsory questioning of a named person violated s 7 of the Canadian Charter. It held that it did not, because the statute included both direct use and derivative use immunity, as required by the Canadian Charter.[130]
[130]Ibid 43 (McLachlin CJ, Iacobucci, Major, Bastarache, Arbour and Deschamps JJ).

In my view, the problem raised is one of critical importance to human rights in this jurisdiction. As explained by Kirby P in Ganin v NSW Crime Commission,

an answer compelled from a witness, although not itself available to be used, could point investigators in a direction allowing them to obtain admissible evidence against that person. In such a way, in truth, the accused person will have been forced to ‘testify against himself’ and in effect, ‘to confess guilt’, contrary to the requirements of this fundamental human right.[131]

[131]32 NSWLR 423, 432 (with whom Meagher JA and O’Keefe AJA agreed).

Section 39(1) of the Act limits the right to a fair hearing and the right not to testify against oneself because it requires people to testify against themselves and then fails to protect them from derivative use of their testimony.

Is section 39 of the Act a reasonable limit that can be demonstrably justified by reference to s7?

Section 7 of the Charter[132] demonstrates that the rights guaranteed by it are not absolute. The Charter acknowledges that, in some instances, it is necessary to limit rights in circumstances where the exercise of the right would interfere with the operation of a free and democratic society. Section 7 provides the criteria by which a limitation on rights might be justified. Hence, limitations on rights are permissible only when limited in accordance with s 7. The question then becomes, is the limitation on the right against self-incrimination as guaranteed by ss 24(1) and 25(2)(k) of the Charter ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors’?
[132]See paragraph [21] above.

A free and democratic society is the fundamental hallmark of our system of governance and way of life. Notions of the ‘public interest’ stem from notions of what is best for a free and democratic society. I find I am assisted by the remarks of Dickson CJ in Oakes:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.[133]

[133][1986] 1 SCR 103, 40.

To this effect, the right to a fair hearing and the privilege against self-incrimination are rights which define the relationship between the individual and the state and protect people against aggressive behaviour of those in authority. They reflect the philosophy that the state must prove its case without recourse to the suspect. They are fundamental to the criminal justice system and their importance should not be underestimated.

The onus of ‘demonstrably justifying’ the limitation in accordance with s 7 resides with the party seeking to uphold the limitation.[134] In light of what must be justified, the standard of proof is high. It requires a ‘degree of probability which is commensurate with the occasion’.[135] King J observed in Williams[136] that the issue for the court is to balance the competing interests of society, including the public interest, and to determine what is required for the accused to receive a fair hearing. It follows that the evidence required to prove the elements contained in s 7 should be ‘cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit.’[137]
[134]Kracke [2009] VCAT 646, [108].
[135]See Bater v Bater [1950] 2 All ER 458, 459 (Lord Denning).
[136](2007) 16 VR 168, 181; in reference to the decision of the Ontario Court of Appeal in R v McCallen (1999) 43 OR (3d) 56.
[137]Oakes [1986] 1 SCR 103, 42.

The party seeking to justify the limitation must satisfy each of the factors in paragraphs (a)-(e), which broadly correspond to the proportionality test identified in Oakes.[138] The notion of proportionality is a key principle embraced by the Charter and reflects the human rights jurisprudence of most comparable jurisdictions.[139] Oakes appears to be an authoritative precedent in the field.[140] In that case, it was said:

There are three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance” (citation omitted).[141]

[138]Ibid 43.

[139]See for example Big M Drug Mart Ltd [1985] 1 SCR 295, Brown v Stott [2001] All ER (D) 2238, R v Home Secretary; ex parte Daly [2001] 2 AC 532; HKSAR v Lam Kwong Wai [2006] HKCFA 84. The proportionality tests applied in each of these authorities are, in general terms, similar to the constituent elements in section 7 of the Charter.

[140]Applied by the HK Court in R v Sin Yau-ming [1992] 1 HKCLR 127 and analogous to the tests in Brown v Stott [2001] All ER (D) 2238, and R v Home Secretary; ex parte Daly [2001] 2 AC 532 .

[141]Oakes [1986] 1 SCR 103, 43.

A balance must be struck between the principle against self-incrimination and the state’s interest in investigating organised crime offences. I have discussed at some length the nature of the right and the nature and extent of the limitation. With this in mind, I turn to the remaining elements of s 7(2).

The court is directed by s 7(2) to consider the importance of the purpose of the limitation and the measures adopted to achieve the objective in question. It seems a matter of logic that the measures adopted in limitation of the right must be of sufficient importance to the uphold a free and democratic society to justify limiting a human right guaranteed by the Charter. It is clear the ‘more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society’.[142]
[142]Ibid 44.

It is apparent that the purpose of the Act is to provide for the prevention and prosecution of organised crime offences that fall within the scope of the Act. Organised crime has become a substantial blight on our society. The offences are serious and significantly detrimental to society. The types of crimes encompassed by the Act are wide ranging. Presumably the purpose of abrogating the privilege against self-incrimination and foregoing a derivative use immunity is to better enable the investigation of such offences. The abrogation responds to perceived difficulties in investigating organised crime in circumstances where derivative evidence cannot be used. This much is clear from the terms of the Act and the extrinsic materials. That said, the applicant was unable to assist the court to better understand the difficulty of investigating organised crime and did not present any evidence on the point. I was directed, without a great deal of precision, to the observations of LaForest J in Thompson Newspapers Ltdv Director of Investigation and Research[143] and the more limited observations of Murphy J in Sorby[144] in which some comments were made about the difficulties that may arise from excluding derivative evidence[145] but these do not assist me in understanding the importance of the purpose of the limitation.
[143][1990] 1 SCR 425, presumably at 502.
[144](1983) 152 CLR 281, 312.
[145]For a discussion on some of the difficulties investigative authorities face in investigating organised crime see M J Young and G Evans, ‘A National Crimes Commission?’ Policy Discussion Paper (AGPS) 1983.

It is conceivable that sophisticated criminal activity presents a number of difficulties to investigative authorities, one of which being that in all investigations of the type contemplated by the Act, there comes a point in time in which the investigator must seek explanations from those participating in the criminal activity. By virtue of the often hierarchical nature of organised crime, questions asked of a participant may be innocuous in themselves, but may relate to a chain of events which ultimately, when placed together, have the effect of compelling the conclusion that the witness is part of the criminal organisation. It may be the indirect questions and their answers ultimately assist the investigator to piece other evidence together.

I find that the limitation is rationally and purposefully connected to its purpose; a purpose important enough to lead to such limitation. Investigative authorities are no doubt greatly assisted by the power to compel suspected participants to answer questions, and to use the information obtained from those answers derivatively to prosecute a person for serious offences. It is apparent that the limitation increases the ability of the state to investigate organised crime offences.

But does the limitation, even if rationally connected to the objective, achieve its purpose in the least restrictive way possible? Is there proportionality between the effects of the measures which are responsible for limiting the right, and the objective which has been identified as of sufficient importance?

I find that the relationship between the limitation and its purpose is more drastic than is justified. In the context of organised crime, such a limitation means that investigators are not required to give careful consideration to which persons will be charged and interrogated (which is different to saying that they do not give such consideration), thereby raising the possibility of innocent or deliberate breaches of the right against self-incrimination, and possibly other human rights. Under the procedures in the Act, it is not necessary to compel the persons who are intended to be charged to give evidence. In reality it would be sufficient to compel persons who will ultimately not be charged to give evidence, or to compel persons who will be charged based on evidence obtained independently from their own testimony.

In my view, the purpose of the limitation may still be achieved whilst retaining a form of derivative use immunity. I have already discussed the absolute nature of derivative use immunity at common law, absolute in the sense that the privilege, in its pure form, entitled a person to refrain from answering at all, leading to the result that there can be no derivative evidence. In this regard, an absolute derivative use immunity would be unrealistic. I am of the view that the test in S(RJ) is appropriate in this jurisdiction as a less restrictive means of achieving the same purpose.

Returning to the hypothetical examples I set out earlier, I note the problem highlighted in each instance falls squarely into the first category of derivative evidence established in S(RJ). My approach will continue to allow investigations to take place under the Act, and will not exclude the Crown from utilising any of the following:

(2) evidence that was discovered as a result of the testimony, but that could have been discovered without such testimony; (3) evidence that would, or would probably, have been discovered even without the testimony; and (4) evidence that was discovered after the testimony was given, but independently of the testimony.[146]

[146][1995] 1 SCR 451, 546.

It will, however, prevent a person being compelled to incriminate themselves from their own testimony in circumstances where the evidence could only have been discovered as a result of that testimony.

The Crown will bear the onus of establishing which evidence is derivative in this regard. This burden will be no more onerous and no different to the usual burden of demonstrating that evidence is admissible against an accused. To this effect, Cory J in Phillips offered a degree of guidance to trial judges and the prosecution in relation to the evidentiary burden relating to derivative use immunity. I adopt the following statement:

In S. (R.J.), Iacobucci J. noted the semantic difficulties involved in any attempt to define ‘derivative evidence’. He therefore proposed instead not a definition of the term, but rather a test to identify the types of derivative evidence which should be excluded at a later criminal trial. This approach (at p. 561) excludes ‘evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness’. This ‘but for’ test is to be applied in a flexible and practical manner at the discretion of the trial judge. The burden of proving that the admission of this evidence would violate the residual protection against self-incrimination found in s. 7 rests with the accused person claiming the violation. However, as a practical matter, much of the evidentiary burden will be borne by the Crown. This must follow since once the accused can point to a ‘plausible connection’ between the compelled testimony and the evidence, then realistically only the Crown will have access to information as to how the evidence was obtained (emphasis added). [147]

[147]Phillips [1995] 2 SCR 97, 67.

In Canada, it has been possible to effectively investigate offences as serious as terrorism while respecting derivative use immunity.[148] The applicant has shown no real reason why this should not be the case in Victoria. This is a less restrictive means of achieving the purpose of the original limitation, but which also gives effect to a reasonable limitation on the right against self-incrimination. It deals squarely with the first category of derivative evidence presented by Iacobucci J in S(RJ). Therefore, the form of derivative use immunity reasonably appropriate is an immunity in relation to evidence that could not have been obtained, or its significance appreciated, but for the compelled testimony of the accused. The immunity should extend to unrelated crimes brought to light as a result of a witness’ testimony. The Charter does not speak of the particular offence but about a person charged not being compelled to testify against him or herself.
[148]See generally Re Application 2004 SCC 42.

It is appropriate at this stage to address a related argument presented by the applicant. The applicant placed much emphasis on the ‘timing’ of the right against self-incrimination, stressing that under the Charter, it is only engaged once a person has been charged. In light of my approach, very little now turns on this. It is clear from the text of the Charter that the right only applies once someone has been charged and the case of a person who has been charged offers a very good example of the issues that may arise under the Act. That said, in Sorby, Gibbs CJ pointed out the dangers that a witness not yet charged with an offence faces when compelled to provide testimony:

If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission.[149]

[149](1983) 152 CLR 281, 294.

The application of the Charter should not be limited simply to persons who have already been charged. Its concern should also include, more generally, the compulsion of persons to give evidence on oath and then to have that evidence subsequently used against them in a derivative way. I acknowledge that the right may only have application once a person has been charged, but that seems a mere process of logic. A person cannot be compelled to reveal his or her own criminality unless charged, because such criminality may only ever be determined by proper judicial process. In this respect, I note that the principle upheld in Saunders is persuasive:

the fact that statements were made by the applicant prior to his being charged does not prevent their later use in criminal proceedings from constituting an infringement of the right.[150]

[150](1997) 23 EHRR 313, 340.

In Phillips, Cory J made a similar observation in the context of the compellability of a witness:

[N]othing turns upon whether the individuals sought to be compelled to testify are accused or merely suspected of criminal offences, and I do not propose to dwell upon this distinction. The fact that I refer primarily to “accused” persons in the discussion which follows should not be taken as excluding, in appropriate situations, the use of the same approach for determining the compellability of “suspects” as well.[151]

[151][1995] 2 SCR 97, 58.

To recapitulate, the applicant has not justified why any further limitation is appropriate. The applicant made limited submissions with regard to s 7. These are insufficient to meet the very stringent threshold I have described. I am not satisfied that the comments of Murphy J in Hamilton or LaForest J in Thompson provide any clear basis on which a further limitation might be justified. Furthermore, I note that derivative use immunity is not uncommon in Australian statutory law. It is provided for, together with direct use immunity, in the Proceeds of Crime Act 2002,[152] the Health Insurance Act 1973,[153] the Quarantine Act 1908,[154] the Crimes Act 1914 (Cth)[155] and the Evidence Act1995 (Cth).[156] These provisions have operated in this form for significant periods of time. It may be assumed that if they were unworkable, they would have been revisited, even removed, by the legislature.
[152]s 271(2).
[153]s 106ZPQ(2).
[154]s 79A(2).
[155]ss 23CA and 23S, 3ZQN and 3ZQR.
[156]s 128A(8).

Alternative interpretation of the Act

The parties submitted that two options are open to the court at this stage of the interpretative exercise. First, words providing for the derivative use immunity so described may be read into s 39 of the Act so as to ensure that such an immunity always operates in relation to compelled testimony. Secondly, the discretion conferred upon the court to make a coercive powers order, and to impose conditions upon the use of the order, may be reinterpreted so as to require the court to consider the right against self-incrimination in determining whether to make a coercive powers order and what conditions to impose.

The applicant recognised that these options were generally open to the court in determining s 32 issues, but that in this particular instance neither was open to it; first, because the Act does not breach the right; and secondly, because an alternative interpretation consistent with the purpose of the Act is unachievable because of that fact. The intervener presented submissions in support of either alternative, but maintained that the Act can be reinterpreted pursuant to s 32 so as to be compatible with the fair hearing right and/or the self-incrimination right, bearing in mind that the reinterpretation permitted by s 32 is significant so long as any reinterpretation remains consistent with the purpose of the Act.[157] This may include implying words into the Act if necessary.
[157]See discussion in Ghaidan v Godin-Mendoza [2004] 2 AC 557, 570-2, 577, 597, 601, 603 (‘Ghaidan’).

In consideration of these submissions, I am of the view that interpreting s 39 of the Act consistently with the rights in ss 24(1) and 25(2)(k) of the Charter is the proper approach. The Charter requires derivative use immunity and that ought to be recognised at an early stage so that all affected operate on a clear understanding of legal rights and obligations. From the perspective of the bearer of the right, early confirmation of the right against self-incrimination is preferable to contingent protection at a later stage. In my view, requiring judges to systematically evaluate whether a condition should be imposed at the making of a coercive powers order falls victim to the ‘great unknown’ of the future procedural steps in the Act. The trial judge may never have sufficient information available to him or her to make such an order, even where one may be required at a later stage. I have already discussed the difficulties that arise from the lack of court supervision in these circumstances.

The applicant objected to the imposition of a condition under s 9(2)(g) of the Act on the basis that the rights may only be engaged once a person is charged with an offence and that this interpretation would be inconsistent with the Act and the Charter. In view of my approach, these concerns diminish. Of course, my finding does not prevent a judge imposing such a condition under s 9(2)(g) of the Act if he or she believes it necessary. Quite the contrary.

As observed already, the purpose of the Act is to facilitate investigations by making provision for compulsory questioning of persons while at the same time protecting those persons to a certain degree from the consequences of being compelled to give self-incriminating testimony. To extend, by implication attaching to s 39 of the Act, the protection provided does not go against ‘the grain’[158] of the legislation. Such an implication continues to permit interrogation and protect an individual not only from the direct use of the answer, but also from the direct use of derivative evidence that is found solely by reason of the answers given. Further consistency between the purpose of the Act and the Charter is apparent from the terms of the Act itself. Parliament was conscious to protect a witness from direct use of his or her answers, to ensure that the making of a coercive powers order is in the public interest by measuring the impact of the use of such an order on the rights of members of the community, and to ensure a fair trial.[159]
[158]See Ghaidan [2004] 2 AC 557, 572 (Lord Nicholls of Birkenhead).
[159]Major Crime (Investigative Powers Act), ss 39, 8(b), 20(2).

More broadly, there is convergence between the Act and the Charter insofar as both legislative instruments propose to deal with the same situations. Section 25(2)(k) of the Charter states ‘a person charged with a criminal offence is not to be compelled to testify against him or herself’ which is, in essence, what the Act requires from a witness (to testify before the Chief Examiner on oath and on pain of punishment).

In my view, this implication is the most appropriate means of ensuring the right against self-incrimination is protected and that a fair hearing is guaranteed. It will also provide a clear mandate to a trial judge allowing the exercise of the discretion (either at the hearing stage or at the stage of making a coercive powers order) for which the applicant contends.

The intervener presented a further argument based on the decision of the House of Lords in Ghaidan. In that case, the House of Lords gave s 3(1) of the Human Rights Act 1998 (UK) a broad operation which allowed the court to depart from the unambiguous meaning the legislation would otherwise have borne and to read in words which changed its meaning.[160] Section 3(1) of the Human Rights Act 1998 (UK) provides:

3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.[161]

[160]Ghaidan [2004] 2 AC 557, 571–572 (Lord Nicholls of Birkenhead), 601 (Lord Rodger of Earlsferry).

[161]The Convention rights referred to in s 3(1) of the Human Rights Act 1998 (UK) are those contained in the European Convention on Human Rights.

In Ghaidan, Lord Nicholls of Birkenhead held,
the interpretive obligation decreed by section 3 is of an unusual and far reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament.[162]
[162][2004] 2 AC 557, 571.
In RJE, Nettle JA appeared to see ‘no reason to doubt that the same is true of s 32’.[163] His Honour made this statement in reference to the comments of Lord Woolf CJ sitting in the UK Court of Appeal in Poplar in which his Lordship stated:

It is difficult to overestimate the importance of section 3. It applies to legislation passed both before and after the Human Rights Act 1998 came into force. Subject to the section not requiring the court to go beyond that which is possible, it is mandatory in its terms. It the case of legislation predating the Human Rights Act 1998 where the legislation would otherwise conflict with the Convention, section 3 requires the court to now interpret legislation in a manner which it would not have done before the Human Rights Act 1998 came into force. When the court interprets legislation usually its primary task is to identify the intention of Parliament. Now, when section 3 applies, the courts have to adjust their traditional role in relation to interpretation so as to give effect to the direction contained in section 3. It is as though legislation which predates the [Human Rights Act] and conflicts with the Convention has to be treated as being subsequently amended to incorporate the language of section 3’ (emphasis added).[164]

[163][2008] VSCA 265, 114.

[164][2002] QB 48, 68.

In view of the approach I have adopted, it is not necessary to further consider the Ghaidan principle. I note, in passing, that the Court of Appeal of the Supreme Court of the Australian Capital Territory declined to follow Ghaidan in R v Fearnside.[165]
[165][2009] ACTCA 3.

The parties also made submissions relating to s 36 of the Charter, should it be necessary to issue a declaration of inconsistency. The question whether such a declaration needs to be issued does not fall for consideration.

In interpreting s 39 of the Major Crime (Investigative Powers) Act 2004, derivative use immunity must be extended to a witness interrogated pursuant to the terms of the Act where the evidence elicited from the interrogation could not have been obtained, or the significance of which could not have been appreciated, but for the evidence of the witness. Derivative use of the evidence obtained pursuant to compelled testimony must not be admissible against any person affected by s 39 of the Act unless the evidence is discoverable through alternative means.

Orders

I would order that the condition imposed on the coercive powers order made by a judge of the Trial Division on 20 October 2008 be removed and a new condition be imposed in accordance with these reasons.[166]
[166]See [157]-[170].

[2009] VSC 381

7 September 2009