Re Mokbel (No 2)
[2024] VSC 39
•12 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0117
| ANTONIOS SAJIH MOKBEL | Applicant |
| v | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Fullerton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 & 2 February 2024 |
DATE OF RULING: | 12 February 2024 |
CASE MAY BE CITED AS: | Re Mokbel (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 39 |
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CRIMINAL LAW – Scope of the use immunity s 40(1) of the Inquiries Act 2014 (Vic) – Sections 80 and 112 of the Inquiries Act 2014 (Vic) – Meaning of ‘other proceedings’ – Meaning of ‘use’ and ‘admission’ of evidence or information or documents given or produced to a Royal Commission (or Board of Inquiry or Formal Review) – Abrogation of the privilege against self-incrimination.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Condon KC with Dr J Murphy and Ms E Fargher | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr D Glynn with Mr T Wood and Mr S Thomas | The Office of Public Prosecutions |
HER HONOUR:
On 9 May 2022 the Court of Appeal referred a number of questions to the Trial Division for determination pursuant to s 319A of the Criminal Procedure Act 2009 (Vic).[1]
[1]On 26 May 2023, the Court of Appeal amended six of those questions; and on 14 December 2023, the Court referred a further two additional questions.
Since that date various orders have been made to facilitate the conduct of the proceedings including, so far as it is relevant for present purposes, an order that both parties file proposed answers to the referral questions.[2]
[2]Dates the orders were first made By Kaye J and the dates of orders I have made for filing further proposed answers.
In the respondent’s further filed answers to the referral questions a number of what were described as ‘preliminary evidential issues’ were identified.[3]
[3]Answers filed on 25 January, 8 [11A].
This judgment is concerned with only one of those issues: the operation of s 40 of the Inquiries Act 2014 (Vic) (the Inquiries Act).
Section 40 of the Act reads as follows:
40 Admissibility of answers, information, documents and other things
(1)Any answer, information, document or other thing given or produced to a Royal Commission by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—
(a) an offence against this Act; or
(b)an offence against section 254 or 314 of the Crimes Act 1958 in relation to the Royal Commission.
(2)Subsection (1) does not apply to a document or other thing if it was obtained, or could have been obtained, independently of its production to the Royal Commission, either before or after its production, by the person seeking to tender it in evidence, or otherwise to use it, in the other proceedings.
(3)In this section— other proceedings means criminal, civil or administrative proceedings before a court, tribunal or person acting judicially or disciplinary proceedings, including proceedings that were pending when the answer, information, document or other thing was given or produced to the Royal Commission.
It was the agreed position of the parties that because the scope of what was conveniently described as the use immunity in s 40(1) will, inevitably, have a direct impact upon the manner in which a number of ‘police witnesses’ the applicant proposes to call in his case will give evidence in these proceedings (each of them having given evidence before the Royal Commission into the Management of Police Informers (the Royal Commission)[4] and/or produced written statements to the Royal Commission) I should hear argument on the scope of the use immunity, before they are called.
[4]Victoria, Royal Commission into the Management of Police Informants, Final Report (2020) (the Royal Commission’s Final Report).
In short, what is at issue between the parties is what is comprehended by the prohibition in s 40(1) on ‘the admission or use of the answer, information, document or other thing given or produced to a Royal Commission against the person in any other proceedings’ or, to put it another way, what is the scope of the use immunity?
The ‘use immunity’ in s 40
Both parties filed comprehensive written submissions addressing the scope of the use immunity in s 40(1).[5]
[5]Filed with the court as: applicant’s submissions on Inquiries Act dated 29 January 2024 (the applicant’s submissions); respondent submissions on Inquiries Act dated 31 January 2024 (the respondent’s submissions); applicant’s submissions in reply on Inquiries Act dated 2 February 2024 (the applicant’s submissions in reply).
The parties written submissions were addressed in oral argument on 5 February 2024, the first day of the hearing of the Reference Determination.
On 6 February 2024, after hearing the applicant’s oral submissions in reply I reserved my decision.
The focus of those submissions concerned the phrase ‘against the person’ and how that word should be understood in the context of its placement in s 40(1), and, relatedly, whether that phrase informs the nature of the proceedings in which the evidence is sought to be admitted or used.
The position of the parties in summary
The respondent’s position
In summary the respondent submitted that the word ‘against’ in s 40(1) should be given its natural and ordinary meaning as ‘in opposition to; adverse or hostile to [a person]’[6] or opposed or unfavourable to; to the detriment of [a person][7] and that seeking to impugn a person’s credit based on evidence previously given to the Royal Commission or a document previously produced to the Royal Commission is, in ordinary discourse, to use that material against the person.
[6]Macquarie Dictionary (9th ed, 2023) ‘word’ (def 3).
[7]Oxford English Dictionary (online) (sense II.2.c).
The respondent emphasised that the word ‘against’ in s 40(1) appears only in the phrase ‘is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings’. That is, the words ‘admissible’ and ‘used’ when used referrable to ‘against the person’ prohibits the admission into evidence of answers given or statements provided to a Royal Commission (against the interests of the person) and the use of the material (against the interests of the person) in any other proceedings.
The respondent placed great emphasis on the fact that there is no limitation on the nature of those proceedings other than what is expressly provided for in the definition of ‘other proceedings’ in s 40(3). The respondent submitted that it is not open to me to read into the expression in ‘any other proceedings’ in s 40(1) the words ‘against the person’, there being nothing in the definition of ‘other proceedings’ in s 40(3) to allow for the implication that the ‘other proceedings’ must be proceedings against the person in the sense that they are proceedings where their legal liability is at issue.
In short, the respondent submitted that s 40(1) prohibits any adverse use of the evidence a person gave or document or other thing they produced to the Royal Commission, including the admission of that evidence, in a wide range of proceedings is prohibited, including, so far as is relevant here, where a person is to be called as a witness in third party proceedings.
The applicant’s position
In summary, the applicant submitted that on its proper construction the use immunity in s 40(1) is confined to where the evidence ( or document) is sought to be admitted or used against the person in proceedings to establish that person’s legal liability in civil or criminal proceedings or where their legal rights are infringed.
The applicant submitted that construction is apparent from the exceptions to the use immunity in s 40(1)(a) and (b) both of which concern criminal liability.
The applicant further submitted that properly understood the breadth of the definition of ‘other proceedings’ in s 40(3) does not derogate from that construction, and that when read in the context of the operation of the section generally, the definition of ‘other proceedings’ should also be read and understood as limited to proceedings against the person and not proceedings in which the person is a witness.
The applicant submitted that the fact that Parliament did not repeat the words ‘against the person’ after the words ‘in other proceedings’ in s 40(1) (a limitation on the scope of the immunity which the applicant submitted is implicit in the way the section is drafted), or specify in the definition of other proceedings in s 40(3) that they are also proceedings ‘against the person’, is merely a reflection of the economy of the language used by the statutory draftsperson in light of the natural meaning of those words in context.
The applicant submitted if the word ‘against’ were used twice it would read in the following way:
(1)Any answer, information, document or other thing given or produced to a Royal Commission by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—
(a) an offence against this Act; or
(b)an offence against section 254 or 314 of the Crimes Act 1958 in relation to the Royal Commission.
That form of expression, it was submitted, was inelegant and the words ‘against them’ otiose.
The context in which the operation of s 40 arises in these proceedings
I did not require the applicant to outline, in terms, how it is proposed that the previous evidence of the ‘police witnesses’ will be used in these proceedings, including whether the applicant proposes to tender their evidence and/or their written statements. I was invited to rule on the scope of the use immunity in s 40(1) on the basis that the applicant’s senior counsel anticipates that she will have the opportunity to use that material in these proceedings to seek to undermine or challenge the credibility of some, or all, of those police witnesses. She anticipates that the evidence of some of those officers will, or might be materially different from the evidence they gave to the Royal Commission, whether the evidence was given orally or in the form of written statements or both.
The respondent did not urge me to require the applicant to identify the witnesses who may be examined or cross-examined in that way, or to identify the source of the material that may be used. It seemed to be at least implicit in the way the respondent put her position in argument that she was alert to the prospect that some or all of the ‘police witnesses’ would or might be exposed to an attack upon their credibility in these proceedings in light of the evidence they gave or written statements they provided to the Royal Commission.
In the result, I am invited to proceed on the basis that some or all of the ‘police witnesses’ will be or might be taken by the applicant to the sworn evidence they gave before the Royal Commission or the written statements they provided, for the purpose of establishing, in these proceedings, that they have made a prior inconsistent statement or series of statements.[8] The issue between the parties whether s 40 of the Inquiries Act operates to prohibit the use (or tender) of that person’s evidence in that way.
[8]See s 108 Evidence Act 2008 (Vic) (the Evidence Act). Since the ‘police witnesses’ are to be called by the applicant, any cross-examination of them will need to be by leave. See s 38 of the Evidence Act. Neither party addressed the operation of that section in argument.
In the respondent’s submission, unless the applicant seeks to use or tender evidence or written statements from a person who gave that evidence or provided that statement to the Royal Commission in a way that is not adverse to that person, neither the person's witness statement nor a transcript of their evidence can be used or admitted in these proceedings.
To put it more directly, in the respondent’s submission any cross-examination of a witness in these proceedings on the basis that they have made a prior inconsistent statement to the Royal Commission would be to use that material against that person, something expressly prohibited by s 40(1), irrespective of the fact that they are not a party to these proceedings and irrespective of the fact that these proceedings are not concerned with their criminal or civil liability.
The respondent ultimately accepted that there was no prohibition in s 40(1) on the admission or use of that material against someone other than the person who gave the evidence or made the written statement. In the context of these proceedings, the respondent accepts that the material can be relied upon in the applicant’s case on the Reference Determination against the Director of Public Prosecutions (the DPP) as the respondent in the proceedings but not if, in so doing, the tender of the material or its use in the proceedings is also ‘adverse’ to the police officer who gave the evidence to the Royal Commission.
Both parties addressed the anticipated consequences that would flow from either a limited scope or reach of the use immunity in s 40 (the applicant’s position) or an extended scope of the use immunity (the respondent’s submission). I will consider those submissions later.
Previous decisions of this Court
The operation of s 40 has not been the subject of consideration by this Court since its assent.
The statutory predecessor to s 40 of the Inquiries Act, is found in s 19C(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and, in a different context, in s 30 of that Act.[9]
[9]Those provisions were inserted into the Evidence (Miscellaneous Provisions) Act 1958 (Vic) by the Crimes Confiscation and Evidence Acts (Amendment Act 1998) (Vic). The primary Act was repealed by the Inquiries Act 2014 (Vic), Sch 2 Item 16.
Section 19C(1) and (2) read as follows:
19C Incriminating answers
(1)Despite anything to the contrary in this Division, a person required to provide any information, or to produce any document or thing, to a commission, or appearing before a commission to give evidence, is not excused from providing the information, or producing the document or thing, or giving the evidence, on the ground that the information, or document or thing, or evidence, may tend to incriminate him or her.
(2)Any information provided, or document or thing produced, or evidence given, by a person to a commission is not admissible against him or her in any proceedings, whether civil or criminal, nor can it be made the ground of any prosecution, action or suit against him or her other than in proceedings for perjury or giving false information.
Section 30 reads as follows:
30Statements made by witness before board or commission not to be used against witness
No statement made by any person in answer to any question before any board or commission empowered under the provisions of this Act or other like body or person empowered under any other Act to summon witnesses shall (except in case of a charge against such person for perjury committed by him in making such statement) be admissible in evidence in any proceedings civil or criminal against him, nor be made the ground of any prosecution action or suit against him; and a certificate signed by the chairman of such board or commission or body or by the sole commissioner or by such person that such statement was made in answer to any such question or in the course of any inquiry before such board commission body or person shall be conclusive evidence that the same was so made.
The decision in Matthews
The operation of s 19C(2) has been the subject of consideration by this Court in Matthews v SPI Electricity Pty Ltd (Ruling No 15) (‘Matthews’).[10] It was the only decision concerning the scope of the immunity in s 19C(2) that the parties were able to locate. There was no decision on the operation of s 30 that their joint research has uncovered.
[10][2013] VSC 112 (‘Matthews’).
The issue in Matthews was whether in a class action brought by persons affected by the Black Sunday Bushfires it was permissible for the one of the energy providers in prosecuting their cross-claim against the State of Victoria for what it claimed was its liability in negligence for the actions of various police officers, to tender parts of statements given by those police officers before the Royal Commission. The officers, not being party the proceedings, were represented at an interlocutory hearing where they argued that the tender of their statements was precluded by s 19C(2).
J Forrest J held that held that s 19C(2) did not prevent the tender of the officers’ statements because the proceedings were not ‘against’ the officers.[11] His Honour explained that while establishing liability against the State would necessarily require ‘a finding to be made in respect of breach of duty on the part of one or more of the officers’, that finding would not adversely impact the officers’ legal rights.[12]
[11]Matthews (n 10), [31] (J Forrest J).
[12]Ibid, [33]–[34] (J Forrest J). J Forrest J reached this conclusion despite rejecting a submission that the officers were ‘merely witnesses in the case’: [35].
Despite what the applicant acknowledges are obvious differences in the statutory language used in s 19C(2) of the Evidence (Miscellaneous Provisions) Act and s 40 of the Inquiries Act, he submitted that his Honour’s construction of s 19C(2) and the scope of the prohibition in that section on the admissibility of ‘information provided, or document or thing produced or evidence given by a person to a commission, in particular what is comprehended by the concept of that material being used against the person in any criminal or civil proceedings, can be meaningfully and usefully adopted in construing the operation of s 40(1) of the Inquiries Act.
The applicant went further and submitted that unless I came to the view that his Honour was in error in concluding that the scope of the use immunity in s 19C(2) was limited to the use against the person in civil or criminal proceedings in which ‘the person’ was a party, I would adopt the same reasoning his Honour applied to the construction of the use immunity in s 19C(2) when construing the use immunity in s40 and allow the applicant to adduce or use the evidence or written statements of ‘the police witnesses’ before the Royal Commission as a prior inconsistent statement to challenge their credibility as a witness in these proceedings.
The respondent submitted the differences between the operation of s 19C(2) of the Evidence (Miscellaneous Provisions) Act and s 40 (1) of the Inquiries Act are so stark that I would not, indeed I should not, follow Matthews. The respondent went further and submitted that to the extent that it was necessary to do so, I would find his Honour’s analysis of the scope of the use immunity in s 19C(1) so seriously flawed that the conclusion his Honour reached as to the limited scope of the use immunity, based as it was upon that flawed analysis, was ‘plainly wrong’ and that I should refuse to follow it for that reason.
It will be necessary to give close attention to the decision in Matthews later in this judgment not only because as a matter of legislative history s 19C of Evidence (Miscellaneous Provisions) Act is the statutory predecessor to s 40 of the Inquiries Act, but because the context in which J Forrest J was called upon to rule upon the operation of s 19C (2) is not dissimilar to the way in which the issue arises in these proceedings.
Previous decisions of other courts
Both parties also referred extensively in their submissions to decisions of other State Courts,[13] the Federal Court,[14] and the High Court,[15] where the scope and operation of what were described by the applicant as cognate statutory provisions have been considered. Both parties took me to a number of those decisions in oral argument to seek to persuade me that a particular decision and the reasoning underpinning it was in broad alignment with the construction of s 40(1) for which they contend. Both parties also sought to distinguish a decision or decision upon which the other party relied in large part because of the different statutory language and context of the provision under consideration.
[13]See, eg, Feldman v Nationwide News Pty Ltd [2018] NSWSC 715; Feldman [2020] NSWCA 260; (2020) 103 NSWLR 307; Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; (2010) 77 NSWLR 506.
[14]Herron v HarperCollins Publishers Australia Pty Ltd [2020] FCA 805; Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 292 FCR 336; Roberts-Smith (No 18) [2021] FCA 793; Roberts-Smith v Fairfax Media Publications Pty Limited (No 39) [2022] FCA 805.
[15]See, eg, Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281.
I am acutely conscious that in the absence of any binding authority in this State the exercise in which I am engaged is to construe the operation of s 40(1) by applying the recognised principles of statutory construction and that it is the text of s 40(1) in the context in which it is found in the Inquiries Act and the purpose for which that section was enacted in that statutory scheme that is the touchstone of that exercise.
In that connection, I note what the plurality of the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority[16] citing the observations of McHugh J in Marshall v Director-General, Department of Transport (2001) CLR 603, namely that it is important to bear in mind that the duty of courts, when construing legislation, is to give effect to the purpose of the legislation under consideration:
The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court’s jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.[17]
[16][2008] HCA 5.
[17](2001) 205 CLR 603, 632-633 [62] (McHugh J).
In the result, while I have found the decisions of other courts in other jurisdictions instructive, if only as providing an historical perspective on the importance of both recognising the fact that protections exist and construing those protections to ensure they operate as they were intended, those decisions were, ultimately, of limited assistance.
Instead it is that Inquiries Act, the most recent legislative pronouncement upon the establishment and conduct of Royal Commissions as one form of Inquiry able to be established by the Executive Government of this State,[18] and the operation and scope of the use immunities in that Act in the context of the legislative scheme under that Act, that must be the primary focus.
[18]The Act also provides for the establishment of Board of Inquiry and Formal Reviews as additional ad hoc inquiries that may be established by the Executive as to which identical use immunity attach see sections 80 and 112.
The competing constructions of the text s 40(1) in detail
In advancing the submission that the use immunity in s 40(1) was not intended to prevent cross-examination of a witness in proceedings to which they are not a party and in which they have no legal interest to protect, but rather it was intended to operate as a protection against that person’s civil or criminal liability including, disciplinary measures,[19] (or to put it another way, that the scope of the use immunity was intended to be limited to proceedings against the person), the applicant placed some reliance upon the interrelationship between the abrogation of the privilege against self-incrimination in s 33 of the Act and the use immunity in s 40.
[19]Boroughs NY Pty Ltd v State of Victoria [2021] VSC 785, [238] (J Dixon J).
In that connection, the applicant drew attention to the fact that in the way the Act was structured or formatted there is an express reference to s 40 in s 33.
33 Privilege against self-incrimination does not apply
(1)Subject to subsection (2), it is not a reasonable excuse for a person to refuse or fail to comply with a requirement under this Act to give information (including answering a question) or produce a document or other thing to a Royal Commission that the information, document or other thing might tend to incriminate the person or make the person liable to a penalty.
Note
See section 40 as to the admissibility of answers, information, documents and other things given to a Royal Commission.
The applicant submitted that the relationship between the abrogation of the privilege against self-incrimination and other privileges in s 33, and the compensatory protection in s 40, was a model replicated in a range of inquisitorial statutes in other jurisdictions. So much is true. Although as I have already pointed out the differences in the way those protections are expressed across a range of different legislative settings provide little guidance as to how the use immunity in s 40 should be construed.
In Matthews – a decision of this Court I referred to earlier, the relationship between 19C(1) and (2), in the sense that the protections in ss (2) were in his Honour’s view to ‘compensate ‘ for the abrogation of the privilege in ss (1), was treated by his Honour as decisive.
At [25] and [26] his Honour observed:
It was accepted by counsel for SPI and the officers that subss (1) and (2) of s 19C have a direct relationship. Subsection (1) removes an important privilege, that against self-incrimination, by requiring the provision of information including, as in this case, documents. Subsection (2) then confers an important benefit on those who might provide information or documentation to a commission, such that the information or documentation is “not admissible against him or her in any proceedings, whether civil or criminal, nor can it be made that the ground of any prosecution, action or suit against him or her”.
In order words, the removal of the privilege against self-incrimination is balanced by an immunity in respect of the provided material. The contest is the scope of the immunity.
Then at [29] his Honour said:
In my opinion, the argument of SPI that the immunity, insofar as it operates in relation to a civil proceeding, is only in respect of a proceeding “against” the particular officer, being a proceeding in which the officer is a party and in which a court, tribunal, or similar body is required to make a determination as to the legal rights and responsibilities of that officer, should be accepted for the following four reasons.
In summary, those four reasons were as follows:
(a) The proceedings were not in any relevant sense against the officers who produced the material as the proceedings could not impact their legal rights;[20]
[20]Matthews (n 10), [34] and [35].
(b) The fact that separate disciplinary proceedings might be brought, thus thwarting the protections in s 19C, was answered by the protection extending to those proceedings;[21]
[21]Ibid, [36] and [37].
(c) Even adopting a generous construction of s 19C it being ‘beneficial’ against the officer in its object (citing Weinberg J in a full Federal Court decision)[22] to extend the scope of the immunity in the way contended for by the police officers was to stretch the text of 19C(1) too far. In that connection J Forrest J said:
[22]Ibid.
By limiting the immunity to a proceeding ‘against’ the person, the Parliament evinced an intention to restrict the scope of the immunity to proceedings to which the person is a party and which have the power to impact the legal rights of that party: Any prospect of a civil judgement, criminal conviction or disciplinary penalty based on the material was to be obviated, and the person supplying the information was to be in no worse position in providing the information than he or she would have been if the claim for privilege was successfully relied upon.[23]
(d) Of no present relevance to these proceedings, the fourth reason concerned the extent of the officers liability and the operation of s 123 of the Emergency Services Act.
[23] Ibid, [46] (J Forrest J).
As I noted earlier, the respondent relied upon the structure of the Inquiries Act in providing for three different types of inquiries (with a Royal Commission being the only model where there is an abrogation of the privilege against self-incrimination) as effectively breaking the connection between the abrogation of the privileges and the so called compensatory protections, or as counsel expressed it, denying the existence of any symmetry between the abrogation of the privilege against self-incrimination in s 33 of the Act and s 40.
The respondent submitted that although there is a reference to s 40 in the note to s 33(1) where the privilege against self-incrimination is abrogated, it is clear that s 40 is not limited in its operation to evidence given under compulsion because it operates to include evidence given voluntarily where the privilege against self-incrimination does apply.
The respondent submitted for that reason alone Matthews is distinguishable and I should not follow it.
The applicant accepted I was not obliged to follow Matthews. The applicant did submit however that if the decision was not distinguishable, then as a matter of judicial comity, I should follow it, unless I am convinced that it is plainly or clearly wrong, a conclusion he submitted that I would not reach lightly particularly where, as has frequently been observed, questions of statutory construction are questions about which reasonable minds can differ.[24]
[24]Applicant’s submission in reply (n 5).
The applicant further submitted that even if I did not follow Matthews, given the very limited case law on s 19C as the statutory predecessor to s 40 (and ss 80 and 112), Matthews was persuasive in the sense that the analysis his Honour gave to the phrase not admissible against him or her in any proceedings, is a phrase which corresponds in significant measure with the operative words of s 40(1), save only for the fact that in s 19C the words civil or criminal proceedings are used to specify those proceedings thereby signifying they are ‘against’ the person while in s 40 the term other proceedings is defined.
I decline to take up the respondent’s invitation to find the decision in Matthews ‘clearly wrong’. I am unable to detect any error of principle or flaw in his Honour’s reasoning. I have found his Honour’s analysis of the issue with which he was confronted instructive, including the orthodox manner in which he approached the construction of s 19C. However since his Honour was considering a provision that does not precisely mirror the text deployed in the statutory successor in s 40 of the Inquiries Act (even if some of the phrasing is repeated)[25] as a matter of principle I am not bound by that decision.
[25]The applicant cited what was described as the ‘re-enactment presumption in’, see , see Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26; (2021) 274 CLR 177, [51] (Gageler, Gordon and Steward JJ). I have not found it necessary to apply that mode of analysis in this construction exercise.
As noted earlier, the applicant submitted that I would understand the Parliament intended to provide a limited use immunity not merely because the phrase in s 40(1), admissible or otherwise able to be used against the person in any other proceedings, is most naturally understood to prevent admission or use of evidence against the person in proceedings to establish their criminal and civil liability, but also because the prohibition on use in s 40(1) construed in that way is the very foundation on which the exceptions s 40(1)(a) and (b) are built, that is to say, both of those exceptions concern proceedings where the person’s criminal liability is at issue.
The respondent submitted that there is nothing in exceptions in s 40(1)(a) and (b) which is inconsistent with a broad reach or scope of the use immunity for which she contends. In the respondent’s submission while the exceptions obviously capture proceedings against the person they do not operate to regulate the way ‘any other proceedings’ in s 40(1) should be construed or dictate that ‘other proceedings’, as defined in s 40(3) are limited to proceedings against the person. The respondent emphasised that the breadth of the definition of ‘other proceedings’ in s 40(3) captures any type of proceedings, whether criminal, civil or administrative before a Court, Tribunal or person acting judicially, including disciplinary proceedings which have that legal character, even where those proceedings involve parties unrelated to the person whose evidence is sought to be admitted or used.
Finally, the applicant also drew attention to the two-fold prohibition in s 40(1) being both admission (against a person) and use (against a person) as further support for the construction for which he contends. In my view, there is force in the proposition advanced by the applicant that neither Courts nor Tribunals ordinarily speak of evidence being ‘admissible … against a person’ where the person is a witness and not a party to those proceedings. I was not taken by the respondent to an occasion or a setting comprehended by the definition of proceedings in s 40(3) where evidence could in any sense be said to be ‘admitted’ against a person who is a witness, in contrast to the concept of evidence being admitted in proceedings where it relevant to a fact in issue between the parties.
It would seem that the prohibition against the use of evidence or other information against a person, which is used disjunctively in s 40(1), reflects the fact that s 30 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic), which is headed, ‘statements by a witness before board or commission not to be used against witness’ (also repealed by the passage of the Inquiries Act) was the source of that concept in the rearticulation of the use immunity in s 40(1). That is, both parties appeared to agree that, s 19C and s 30 were effectively ‘collapsed’ into s 40(1). The prohibition on the ‘use’ of evidence or other information ‘against a person’ is obviously of wider import than the ‘admission’ of evidence ‘against a person’. That does not of itself assist in resolving the question at issue in these proceedings, namely, the scope of the use immunity.
Extrinsic materials
The Inquiries Act was enacted in response to a recommendations of the 2009 Victorian Bushfires Royal Commission in circumstances where that Royal Commission, and other Royal Commissions in Victoria that predated it, had been conducted without the benefit of a dedicated legislative framework unlike the position in other States.[26]
[26]Victoria, Legislative Assembly, Parliamentary Debates, 20 August 2014, 2785, 2923 (Napthine) referring to 2009 Victorian Bushfires Royal Commission, Final Report, recommendation 67. See also, the Royal Commission’s Final Report (n 4), Vol 3, 54.
The Act was designed to provide a new legislative framework for the establishment and conduct of inquiries in Victoria with the existing legislative models under which Royal Commissions and Boards of Inquiry had been established in the past being both ‘modernised and built upon’.[27] There is express reference in the Explanatory Memorandum to the Constitution Act 1975; Evidence (Miscellaneous Provisions) Act; Public Administration Act 2004 (Vic); and the Parliamentary Committees Act 2003 (Vic) in that context. A less formal model of inquiry was also to be provided for (known as a Formal Review) a model that had hitherto lacked a legislative basis.
[27]Explanatory Memorandum to the Inquiries Bill 2014 (Vic), 1.
In commending the bill to the lower house the Premier emphasised the significant public importance that Royal Commissions and other Executive Inquiries serve and the ‘new and effective framework to support the establishment of such bodies’ in the bill, including a raft of extensive information gathering and investigative powers appropriate to the task of inquiring into ‘significant matters affecting the community’.[28]
[28]Victoria, Parliamentary Debates, Legislative Assembly, 21 August 2014, 977 (Dr Napthine).
Both parties have invited reference to the Explanatory Memorandum and the Statement of Compatibility[29] embedded within the Explanatory Memorandum as capable of informing the statutory purpose in the enactment of s 40 as part of the new legislative scheme for the conduct of Royal Commissions which is comprehended by the Inquiries Act.
[29]Made in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Vic), s 28.
It is worth emphasising at this point that while s 40(1) of the Act is the source of the use immunity where a person (not limited to natural persons)[30] gives evidence to a Royal Commission; provides information to a Royal Commission or produces a document to a Royal Commission; s 80(1) in Part 3 of the Act governs the situation where a person (again not limited to natural persons)[31] gives evidence; provides information or who produces a document to a Board of Inquiry and in Part 4 of the Act s 112(1) reproduces the use immunity in the same terms where a Formal Review is convened.
[30]Interpretation of Legislation Act 1984 (Vic), s 38.
[31]Ibid.
Sections 80(1)-(3) and 112(1)-(3) are expressed in identical terms to s 40(1)–(3). None of these sections have been the subject of consideration by this Court. Although it does not present as an issue for determination in these proceedings, as a matter of statutory construction, I accept that the same meaning should be given to the operative words in each provision.[32]
[32]The King v Jacobs Group (Australia) Pty Ltd (2023) 97 ALJR 595.
In the respondent’s submission the fact that that there are three models of inquiry with a Royal Commission being only one model deprives the applicant of an argument central to the construction he advances, namely, that the relationship between the abrogation of the privilege against self-incrimination and penalty privilege in s 33 of the Act supports a construction of the use immunity in s 40 being limited to protecting a person against the exposure to criminal and civil liability.
In the Explanatory Memorandum only clause 40 was the subject of any commentary. Each of clauses 80 and 122 referred back to that commentary.
It is useful to set out the commentary in full.[33]
[33]Explanatory Memorandum (n 25), 30-31.
Clause 40 limits the circumstances in which evidence provided to a Royal Commission by a person can be used against the person in other proceedings.
The clause provides that any answer, information, document or thing given or produced by a person to a Royal Commission (and the fact it was so given or produced), cannot be admitted against that person in any other proceeding.
Meaning of “other proceedings”
For the purposes of this clause, other proceedings is defined broadly to mean any criminal, civil or administrative proceedings before a court or tribunal or any disciplinary proceedings, including any proceedings that were pending when the evidence was given to the Royal Commission.
Evidence to which the protection applies
The protection extends to all types of evidence provided to a Royal Commission, including but not limited to—
• evidence compelled using coercive powers;
•evidence provided voluntarily, either by a person's own volition or in response to an informal information request (for example, a request for a witness statement);
•privileged evidence required to be given as a result of the abrogation of legal professional privilege and the partial abrogation of the privilege against self-incrimination;
•evidence required to be given as a result of the disapplication of statutory secrecy provisions.
This protection will support the effective conduct of Royal Commission inquiries, by allowing persons to provide a Royal Commission with relevant information without fear that it will be used against them. By extending the protection to evidence which is provided voluntarily (rather than coercively obtained), it also ensures that Royal Commissions can rely on the cooperation of witnesses and are not forced to exercise their formal powers of investigation.
Exceptions
There are 3 exceptions—
•where the other proceeding relates to an offence against this Bill (e.g. the offence of giving false or misleading information to a Royal Commission); and
•where the other proceeding relates to an offence against section 254 (destruction of evidence) or 314 (perjury) of the Crimes Act 1958 in relation to the Royal Commission; and
•where the relevant document or other thing was obtained, or could have been obtained, independently of its production to the Royal Commission (either before or after its production) by the person seeking to use the document or other thing in the other proceedings. This ensures a prosecutorial body can use such documents and other things that were, or could have been, obtained independently of the Royal Commission's inquiry. Unlike the first 2 exceptions, this exception does not extend to the fact that the relevant document or thing was produced.
Self-incriminating evidence
In the case of self-incriminating evidence, the protection balances the limitation on the rights of individuals caused by the partial abrogation of the privilege against self-incrimination in clause 33.
Thus, the Bill ensures that a Royal Commission has access to as much information as possible (through the partial abrogation of the privilege), while at the same time adequately protecting the rights of those who are compelled to provide self-incriminating evidence.
I consider it of some significance in engaging in this construction exercise that there is no suggestion in the detailed commentary set out above that cl 40 was intended to be a wholesale reformulation of the use immunity that existed under the predecessor provision in s 19(c) Evidence (Miscellaneous Provisions ) Act 1958 (Vic), or that the scope of the use immunity as it had previously operated[34] should be extended in the new Act to prohibit the admission and use of evidence and other material given or produced to a Royal Commission (and the other inquiry models) in the way contended for by the respondent, namely, in any proceedings (as defined), including where the use or admission of the evidence or other material in those proceedings is adverse to a person, including a witness, whose legal liability is not in issue.
[34]I note, that Matthews (n 10) was decided in 2013.
Rather the discussion in the Explanatory Memorandum focuses on the extension of the protection to all types of evidence provided to a Royal Commission, including evidence given voluntarily, a protection that is designed to support the effective conduct of a Royal Commission by allowing people to provide a Royal Commission with relevant information without fear that it will later be used against them.[35]
[35]Explanatory Memorandum (n 25).
I accept that Parliament evidently intended to afford a considerable protection to witnesses before a Royal Commission, whether or not they gave evidence under compulsion, doubtless to ensure that the Royal Commissioner had available the best information upon which to undertake their inquisitorial functions.
I also accept that since the purpose in s 40 is ‘beneficial’, in the sense that it operates to protect those who give evidence or provide information to a Royal Commission, and that it should not be narrowly construed.[36] There is, however, nothing in the commentary to suggest the protection in s 40(1) was intended to extend to all settings and scenarios comprehended by the definition of ‘other proceedings’ in s 40(3), including, by way of example, where the person might be compelled to give evidence under a subpoena in proceedings before a court or tribunal and where in the course of giving their evidence what they said before the Royal Commission might be used in an adverse way or have the potential to be treated (presumably by the Court or Tribunal) as adverse to the person.
[36]See, Royal Commissions, Div 8 of Pt 2.
In my view, were it intended that the use immunities which were in current operation in the Evidence (Miscellaneous Provisions) Act 1958 (Vic) would have a significantly extended scope and operation in the Inquiries Act, I would have excepted some notation or commentary in the Explanatory Memorandum to that effect.
When the Premier delivered the Compatibility Statement he emphasised that although inquiries established under the bill will not constitute civil criminal proceedings, nevertheless, as the Premier observed, the right to be protected against self-incrimination is ‘relevant to clauses of the bill relating to the subsequent use of evidence given to inquiries’. He went on to say:
The abrogation of this privilege is balanced by a use immunity, which ensures material given to a commission by a person is inadmissible in any subsequent proceedings against that person (with limited exceptions, discussed below). The immunity: extends to information, answers, documents and things (although, as discussed below, documents are treated differently from other materials in certain respects); applies directly to all materials obtained by a commission, whether by compulsion or voluntarily, including material obtained as a result of an abrogation of privilege. In the case of self-incriminating material, the Supreme Court has held that similar immunity provisions extend to other evidence obtained as a direct result of such materials; and applies in all subsequent criminal, civil, administrative proceedings before a court or tribunal or any disciplinary proceedings (emphasis added).
This passage is said by the applicant to reflect, in the clearest terms, a limitation on the scope of the use immunity mirroring the position that had obtained up to that time. The respondent submitted that what the Premier said should be read in context and, since the Compatibility Statement was concerned with the privilege against self-incrimination in s 25(2)(k) of the Charter it should be confined in that way.
That submission is in my view difficult to accept given that the Premier refers expressly to materials obtained voluntarily.
Acknowledging the use of extrinsic materials in a construction exercise should not displace the task of giving meaning to the words of the text under consideration, but that they are available to be used to elucidate, were possible, the statutory purpose of a statutory provision in context, it seems clear to me from the Premier’s second reading speech that he understood the protections inherent in the use immunity in the bill were to protect against the admission of incriminating evidence in ‘any subsequent proceedings against the person (with limited exception)’ before the Premier proceeded to address the use immunity in detail.[37]
[37]Explanatory Memorandum (n 25).
The Premier did not, in that context, return to or comment upon the operation of the use immunity and the scope of the immunity provided for in cl 40, 80 or 112 of the bill.
Consequences
It is recognised in the authorities that where two construction of a piece of legislation are reasonably open, the consequences that would flow from competing constructions may be of assistance in informing Parliament’s intention.[38]
[38]Respondent’s submissions (n 5).
The respondent dealt with that proposition in two ways. First, it was submitted that the applicant’s construction is not reasonably open because the language of s 40 is clear and unambiguous with the meaning of the text reinforced by context and purpose.
Even were I of the view that there is a competing construction open, the respondent submitted that the applicant’s suggested adverse consequences of the respondent’s construction are either misstated, or merely criticise the result because it is not one that assists him in this proceeding, and not because of some policy or purpose identified in accordance with orthodox principles of statutory construction.
The applicant submitted that if the use immunity in s 40 were construed in the way contended for by the respondent, a Court in the position of this Court would be required to proceed to answer the questions referred by the Court of Appeal upon potentially seriously deficient evidence without any sound policy reason for doing so.
For example, on the respondent’s interpretation of s 40, in advancing his case on the Reference Determination, the applicant would be prevented from questioning a witness about the evidence they gave or a written statement they provided that is inconsistent with their sworn evidence in these proceedings, if the purpose of using the evidence in what would otherwise be a legitimate forensic exercise, is to undermine that person’s honesty or reliability or both. It would also seem to follow, as the applicant submitted, that despite the availability of a witness’s prior evidence being on the public record that person could give deliberately false evidence in these proceedings without the risk of contradiction or exposure to a charge of perjury.[39]
[39]The witness might separately be prosecuted for perjury, but arguably only in relation to lies told at the Royal Commission, not lies told to the Court that could only be established by what was said at the Royal Commission: Inquiries Act 2014 (Vic), s 40(1)(b).
The respondent seeks to address those scenarios by the submission that a credit attack on any of the police witnesses to be called in these proceedings is precisely what s 40 is intended to prevent. The respondent further submitted that neither the Court nor the administration of justice generally in this state should be concerned at the ‘appearance’ of perjury or the receipt of deliberately false evidence in these proceedings (or proceedings of a like kind) in these proceedings. In the respondent’s submission ‘there is nothing troubling about that outcome’.[40]
[40] Respondent’s submission (n 5).
Although the construction question with which I am confronted applies equally to all three models of inquiries under the Act, in the particular circumstances of this case the applicant submitted that it could not have been the intention of the Parliament in enacting s 40 that evidence of serious and systemic police impropriety given at a Royal Commission, as revealed through sworn testimony of police officers and written statements they produced, should be unavailable for use or admission into evidence on a fresh evidence appeal by a convicted person or otherwise used to correct a miscarriage of justice.
The respondent deals with that submission by emphasising that the gathering of evidence for admission in adversarial proceedings in a curial context is not the purpose in the Inquiries Act. The respondent submitted that, in any event, the applicant has access to all the information on the Royal Commission website and has used compulsory processes to obtain access to a large volume of documents and that he is free to use that to inform his case and to make forensic decisions with the benefit of that information. In effect the respondent seems to be submitting that if the applicant is deprived of making his case because he seeks to deploy some of that material to demonstrate that a witness or witnesses who are to give evidence in these proceedings are not to be believed, and that one or more of the referral questions cannot be fully answered as a result, that is not a consequence that has any bearing on the question of construction that I am to resolve.
I am unable to accept that submission. In my view, the consequences that would, or might, flow from the construction of s 40(1) urged by the respondent, have the potential to be used in courts exercising criminal jurisdiction in this State, in a way that might undermine the administration of criminal justice. In courts or tribunals exercising civil jurisdiction, the construction urged by the respondent has at least the potential to adversely, or unfairly, impact on the way civil litigation is conducted. While it is true that courts do not undertake a search for the truth but moderate and ultimately adjudicate between the competing rights of the parties, for a witness in criminal or civil proceedings to give deliberately false evidence with impunity (that is without fear of contradiction), seems to me to be a consequence worthy of weight in the construction exercise.
Conclusion
At the forefront of the Parliament’s stated intention in modernising and synthesising the powers and responsibilities of a Royal Commission, as one the three models provided for in the Inquiries Act, was a recognition of the demonstrable public interest in a Royal Commission being able to fully investigate matters of community concern on the best available information. While the Parliament was clearly concerned to ensure that people who provide that information were protected, it was in the definition of other proceedings in s 40(3) of the Act that the Parliament intended to specify the range of the proceedings in which a witnesses evidence was neither admissible nor able to be used against them. What the Parliament did not do was proscribe all adverse uses to which a person’s Royal Commission evidence might be put. It limited the use immunity to proceedings where a person is required to act judicially.
On that analysis, a person who gave evidence or information to a Royal Commission might be exposed to an adverse finding in other proceedings where a decision maker is not required to act judicially, or in another context altogether, where a witness’s evidence or other information produced to a Royal Commission might be used in a way that is injurious to their health, livelihood, or reputation.
In my view, the construction which best accords with the legislative context in which the Inquiries Act was passed and its intended purposes is that Parliament intended to protect a person’s exposure to legal liability in criminal or civil proceedings bought against them (or in other proceedings adversely impacting on their legal rights): the construction advanced by the applicant.
The construction advanced by the respondent to the effect that Parliament intended that there should be an absolute prohibition against the use of evidence given by witnesses before the Commission (or a statement provided to the Commission) in any proceedings caught with s 40(3), even if they are not proceedings where the civil or criminal liability of that witness is in issue does not, in my view, promote the underlying purpose or object of the Inquiries Act or readily align with its legislative history.
I am of the settled view that Parliament would have spoken much more clearly in the text of s 40(1) had the passage of the Inquiries Act amending the position that had obtained in this State at least since 1998[41] been intended to extend the scope of the use immunity in the way contended for by the respondent. Additionally, were that to have been the intention of the Parliament, it is difficult to accept that the Premier in addressing the lower house in the terms he did in the Explanatory Memorandum, would not have drawn to the attention of the members a significant shift in the law from the way the balance had been struck between protection and use under previous legislation and an expanded use immunity in the legislation that was to replace it.
[41]See, Evidence (Miscellaneous Provisions) Act 1958 (Vic) (n 9).
In construing s 40 so as to confine the use immunity to proceedings against the person who gave the evidence or produced the document to the Royal Commission, where their criminal or civil liability is at issue (or where their legal rights are impacted). I do not consider I have breached the prohibition on importing into the section words which are not there. Instead, I have given what I consider to be the natural and ordinary meaning to the operative parts of the section, including what I consider to be the grammatical sense that those words are intended to convey in a modern example of statutory drafting, and in way that is consistent with the context in which the Inquiries Act was passed and its statutory purpose.[42]
[42]Project Blue Sky Inc v Australian Broadcasting Authority 194 CLR 355. See also s 35(a) of the Interpretation Legislation Act 1984 (Vic), which requires me to construe the meaning of the section in a manner that would promote the underlying purpose or object of the Inquiries Act.
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