Registrar of the Supreme Court of South Australia v Zappia No. Scciv-02-1324

REGISTRAR OF THE SUPREME COURT OF SOUTH AUSTRALIA v ZAPPIA
[2003] SASC 276
Civil

BLEBY J: The defendant has pleaded not guilty to two charges of contempt of court arising out of his failure to answer questions put to him by prosecuting counsel when directed to do so by the trial Judge.
On 9 April 2001 the Director of Public Prosecutions laid an Information charging the defendant and one Jamil Yousef Kamleh jointly with the murders of Isac Colberg, also known as Faraz Rasti, and Rhiannon Ellul. On 17 December 2001 an application was made by Kamleh seeking a separate trial from that of the defendant. On 16 January 2002 a Judge of this Court ordered that Kamleh and the defendant be tried separately.
On 27 February 2002 the trial of the defendant commenced. That trial concluded on 5 April 2002, and during the course of the trial the defendant gave evidence. He was convicted of two counts of manslaughter.
On 26 April 2002 the defendant applied for leave to appeal against his conviction. On 1 July 2002 leave to appeal was granted on grounds which, if they were successful, would have justified a retrial. Although not relevant to the present proceedings, one of the convictions was in fact set aside after the events giving rise to the present charges. A retrial was ordered but not proceeded with. The defendant was eventually sentenced for the one remaining conviction which was not set aside on the appeal.
On 7 August 2002 the trial of Kamleh commenced before another Judge of this Court sitting without a jury. That trial concluded on 27 September 2002 at a time when the defendant’s appeal had been argued before the Court of Criminal Appeal but before the Court had delivered its judgment. That happened on 1 November 2002.
The defendant was called to give evidence by the prosecution on the trial of Kamleh. The first charge of contempt relates to the defendant’s refusal, when directed to do so by the Court, to answer questions put to him by the prosecutor in the course of a voir dire examination on 8 August 2002. The second relates to a refusal in similar circumstances to answer questions during the trial on 28 August 2002.
It is necessary to recite in some detail what took place at the respective hearings.
When the defendant was called to give evidence on the voir dire Mr Ey sought and was granted leave to appear for him. Immediately after the defendant was sworn Mr Ey said:
“Before my learned friend endeavours to cross-examine Mr Zappia, the situation is that Mr Zappia has an appeal pending before the Court of Criminal Appeal and, on my instructions, there is a concern that any evidence that he gives in this court could affect his retrial, if one were given, and there is a risk of self-incrimination.”
Thus, it appeared at that stage that Mr Ey had taken instructions, and the defendant was concerned to protect his supposed privilege against self-incrimination in relation to what was then a possible second trial. It was that ground that appears to have been understood and maintained by the defendant when he was first asked questions on the voir dire. However, during that exchange a further reason was advanced which was to form the basis of later submissions on his behalf. The exchange proceeded as follows:
Q.Did you, in March of this year, give evidence, on oath, on the topic of your knowledge of the deaths of Faraz Rasti and Rhiannon Ellul.
A. Yes.
Q.Is there any reason which prevents you from giving evidence in this court on that same topic.
A.Yes; because I claim privilege.
Q.On what basis do you claim that privilege.
A.Because I’ve got an appeal pending.
Q.Is that the only reason –
A.Yes.
Q.That you are unable to give evidence to this court.
A.Yes.
HIS HONOUR
Q.Could you repeat why you can’t give evidence.
A.Because I’m not going to give evidence, and that’s it.
Q.I’m sorry.
A.I won’t give evidence, because I don’t know what – I haven’t even met this bloke.
Q.Why won’t you give evidence.
A.Because I won’t give evidence.
It was assumed by counsel and the Judge that the reference to “this bloke” was a reference to the accused Kamleh. If so, the defendant’s statement that he had not met him was quite contrary to the evidence he had given at his own trial.
Mr Ey then sought an adjournment to enable the defendant’s objection to be properly argued. The matter was adjourned until later in the day, when Mr Cuthbertson appeared for the defendant. Before the defendant was asked any further questions Mr Cuthbertson explained that he claimed privilege against self-incrimination, which initially appeared to be a submission directed to the effect of the defendant giving evidence on his possible retrial. Counsel then referred to the remark volunteered by the defendant earlier in the day to the effect that he had not even met Kamleh, noting that the evidence given at his own trial was inconsistent with an assertion that he did not know or had not met Kamleh. If the defendant continued to assert the truth of that statement by being required to answer questions touching events relevant to the present trial, he would thereby be acknowledging an offence of perjury in the evidence given at his own trial or would be required to commit further perjury at this trial, depending on which statement was correct. Alternatively, if he gave evidence consistent with that given at his own trial, he would be giving further evidence of perjury in what he had volunteered about his relationship with Kamleh that morning. There was no doubt that Mr Cuthbertson put the submission on two bases. He said:
“The question is whether there is a risk of him implicating himself in a criminal offence. I am pointing to the criminal offence as being perjury, but I am prepared to take it further than that and assert that it also relates to his possibility of a trial.”
The trial Judge, in my respectful opinion correctly, declined to entertain a global submission that the defendant should not be asked any questions, but decided that each question should be put and a ruling given after hearing argument on that question. I respectfully agree with what Kirby P said in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 423:
“Just as the Court must protect the privilege, it must also make sure that the rule is not abused; but applied only where its invocation is justified: see Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403. The proper procedure in a claim for privilege is to object to each question as it is asked: see Ex parte Reynolds; Re Reynolds (1882) 20 Ch D 294 (at 294); Brebner v Perry [1961] SASR 177 at 180. It is not proper to refuse to be sworn or to decline to answer any questions at all or to claim a global protection from the privilege. Such a refusal may amount to a contempt of court: see Smith v The Queen (1991) 25 NSWLR 1 at 9. Nevertheless, a point will be reached in questioning where it will be unnecessary to persist with an entire cross-examination which is clearly futile by reason of the invocation of the privilege against self-incrimination. To demand a tedious repetition of questions, rebuffed every time by a claim of privilege which is upheld, would be pointless;”
Counsel for the prosecution then put the question again:
“Did you give evidence on the topic, specifically, of who was present at the time when Faraz Rasti was killed.”
It will be noted that the defendant had previously given an affirmative answer to that question when it was first asked. That fact seems to have been overlooked by counsel and the Judge. The following exchange then continued:
A.I decline to answer any questions.
HIS HONOUR
Q.Why is that.
A.Because I decline to answer any questions.
Q.Why is that.
A.For the same reason.
MS KELLY: I will ask the question again.
MS KELLY
Q.Did you give evidence on the topic, specifically, of who was present when Faraz Rasti was killed.
A.I decline to answer any questions.
HIS HONOUR
Q.Why is that, Mr Zappia.
A.Because I decline to answer any questions.
Q.You haven’t given me a reason why you don’t want to answer any questions. Do you want to tell me why.
A.I decline to answer any questions.
LAST TWO QUESTIONS AND ANSWERS READ BY REPORTER.
Q.Why is it that you decline to answer this question.
A.Because I have been advised by my lawyers to decline every question.
Mr Cuthbertson was then invited to make any submissions. He declined to do so. The following exchange then continued:
HIS HONOUR
Q.Mr Zappia, I direct you to answer the question.
A.I decline to answer.
Q.Will you do so.
A.I decline to answer any question.
Q.You understand that I am directing you to answer the question.
A.I am declining to answer the question.
Q.You understand that, by declining to answer the question, you may be held in contempt of my direction; contempt of court. Do you understand that.
A.I still decline to answer the question.
Q.Do you understand what I have said.
A.Yes.
At the request of the prosecutor there was then an adjournment for lunch and to enable the defendant to consider whether he wished to provide any further information to the Judge as to his reasons for refusing to answer, after taking further legal advice.
The matter resumed after lunch, Mr Cuthbertson making the following submission:
“There is no change in the position since before lunch. Mr Zappia has instructed me that he doesn’t want to, and he won’t, give evidence. He is aware, and he has been aware, of your Honour’s contempt powers.
I spoke to him and indicated to him that your Honour was interested in some sort of reason for his attitude. His reply was ‘I don’t want to be a rat’. I think your Honour can draw certain inferences from what that means. He has consistently maintained that attitude.
I should say, too – and I’m instructed to say this – at no stage have his legal advisers advised or instructed him not to give evidence. By way of explanation for that, he was advised that if he wasn’t going to give evidence, he would be better declining to answer questions, and he has declined to answer questions, rather than say something which might be unfortunate, and your Honour will recall what happened before lunch.
…….
I should say, indeed, he has been advised of the advantages of giving evidence before he was sentenced, and he has been advised before today of the possible consequences of not giving evidence. He has maintained that attitude in the face of that for quite some time.
He is not very sophisticated, and I have some doubts about his ability to understand a question that might attract privilege and a question that might not attract privilege. His answers to your Honour, in the face of your Honour’s questioning, ‘I decline to answer any questions’, I think, was an attempt to faithfully put the suggestion ‘Look, if you don’t want to answer any questions, just say you decline to answer any questions, rather than say something else’. He has instructed me that, if he is asked questions, he will decline to answer them.”
That submission was significant in that whilst it acknowledged a lack of sophistication on the part of the defendant, it did not suggest that the defendant had been advised or that the defendant’s instructions were to the effect that he relied on the privilege against self-incrimination. The Judge could well have been informed by Mr Cuthbertson, if it was the case, that where the defendant declined to answer a question, his instructions were that he was doing so on certain grounds. However, that was not put.
The next exchange was also revealing as to the defendant’s real reasons for refusing to answer. The question was put again by the prosecutor:
MS KELLY
A.Did you give evidence on the topic, specifically, of who was present at the time when Faraz Rasti was killed at your trial in March this year.
B.I decline to answer.
HIS HONOUR
Q.Would you tell me why you decline to answer that question.
A.Because I’m not a rat.
Q.What does that mean.
A.Exactly what it says.
Q.I direct that you answer that question.
A.I decline to answer it.
Q.Do I understand that you refuse to follow my direction.
A.Yes.
Q.Could you explain to me why you refuse to follow my direction.
A.Because I decline to answer your question.
There was a further exchange, irrelevant for present purposes, and the prosecutor asked the second question:
MS KELLY
A.On the topic of who was present at the time when Faraz Rasti was killed, did you give truthful evidence in the court in March.
B.I decline to answer.
HIS HONOUR
Q.Why do you decline to answer that question.
A.Because I decline to answer.
There was then a submission that the question would attract privilege on the ground that if the answer were in the negative it would be implicating him in an offence. There was a further reference to the fact that the defendant would possibly be subject to another trial, and that to acknowledge the truth of the evidence would be an admission of the falsehood of the answer volunteered earlier that morning. At the conclusion of the argument the trial Judge directed the prosecutor to put the question again and the following exchange occurred:
A.Specifically on the topic of who was present at the time when Mr Rasti was killed, was your evidence true.
B.I decline to answer.
HIS HONOUR
Q.I direct you to answer that question. Will you do so.
A.No.
Q.Why not.
A.Because I decline to answer.
Q.I didn’t hear that answer.
A.I decline to answer.
HIS HONOUR: You proceed, Ms Kelly.
MS KELLY
Q.Did you, at your trial in March this year, give evidence on the topic of your movements on the night of Sunday evening, 2 April, and the early hours of Monday, 3 April 2000.
Mr Cuthbertson repeated, by reference, his earlier submissions and was asked whether he wished to put any evidence before the Court as to whether the defendant sufficiently understood the issue to address it. He indicated that he was not instructed to place any material before the Court. The previous question was read again and the following exchange occurred:
HIS HONOUR
Q.Would you answer the question please.
A.I decline to answer any questions any more. That’s it. Don’t ask, because I’ll just decline every question. I’m sick of it. Just stop it.
Q.Will you explain to me why you won’t answer that question.
A.I decline to answer any questions.
Q.I direct you to answer that question. Will you do so.
A.I decline to answer that question.
HIS HONOUR: Proceed, Ms Kelly.
MS KELLY
Q.Were you present at the time when Faraz Rasti was killed.
A.I decline to answer that question.
HIS HONOUR
Q.Why do you decline to answer the question.
A.Because I decline to answer the question.
Q.I direct you to answer that question.
A.I decline it.
Q.Will you do so.
A.I decline to answer all questions.
That passage is also significant in that the defendant indicated that he would be refusing to answer any questions at all, not just the questions which had been asked. Mr Cuthbertson recorded the “same objection”. The evidence continued:
MS KELLY
A.Was there any other person or persons present when Faraz Rasti was killed.
OBJECTION:              MR CUTHBERTSON OBJECTS.
MR CUTHBERTSON:        For the same reason.
B.I decline to answer any questions, like I said before.
HIS HONOUR
Q.Why do you decline to answer that question.
A.I decline everything you say. Whatever you say, I decline everything.
Q.I direct you to answer that question. Will you do so.
A.I decline it.
Q.Why not.
A.Exactly what I said.
MS KELLY
Q.At your trial in March this year, a witness named Jeremy Ievins gave evidence that he saw two men enter The Grand Apartments at approximately 1 a.m. on Monday, 3 April 2000. Were you one of those two men.
OBJECTION:              MR CUTHBERTSON OBJECTS.
A.I decline (to) answer.
HIS HONOUR
Q.Why do you decline to answer.
A.I decline to answer all questions.
Q.I direct you to answer that question. Will you do so.
A.No, I decline to answer everything.
Q.Why won’t you follow my direction.
A.I decline to answer all questions.
The refusal to answer those questions in accordance with the directions of the trial Judge constituted the contempt alleged in the first charge.
On 28 August 2002 the defendant was called to give evidence on the trial itself. On that occasion Mr Boucaut appeared for the defendant. He indicated that he had taken instructions from the defendant and needed no further time before his client gave evidence. Again, Mr Boucaut’s submissions shed light on the nature of the objection being taken by the defendant to giving evidence. He said:
“May I simply say that it’s my respectful submission that were that course be (sic) adopted that would be oppressive to my client. He has already made his position plain, that he does not wish to answer questions. I can tell your Honour that my instructions are that he does not, that he maintains that stand, that he does not wish to answer questions and indeed will not.”
…………
HIS HONOUR: Why is it oppressive? You say it’s oppressive; why is that?
MR BOUCAUT: Because he has indicated that to your Honour and he doesn’t, as your Honour may well understand, appreciate the niceties of the distinction between a voir dire and a trial. He is simply saying that he does not wish to answer any questions and he won’t. If your Honour were to now require him to answer questions yet again, with the threat that he would be in contempt if he maintains his stand, then I respectfully put to your Honour that that is oppressive to him.
The defendant was then sworn. There was a further exchange between the trial Judge and Mr Boucaut which it is not necessary to set out, during which the prosecutor recited the three questions that she proposed to ask the defendant. The Court then adjourned to enable Mr Boucaut to obtain instructions from the defendant as to those questions. Upon resumption proceedings continued as follows:
+EXAMINATION BY MS KELLY
A.Did you in March of this year give evidence on oath on the topic of your knowledge of the death of Faraz Rasti and Rhiannon Ellul.
B.I decline to answer all questions.
…………
HIS HONOUR
Q.Why do you decline to answer all questions.
A.Because I decline to answer all the questions.
Q.And why is that.
A.Because I decline to answer the questions.
Q.I direct you to answer that question.
HIS HONOUR:           Would you put the question again please.
XN
A.Did you in March of this year give evidence on oath on the topic of your knowledge of Faraz Rasti and Rhiannon Ellul.
B.I decline to answer all the questions.
HIS HONOUR
Q.Do you do so despite my direction to you to answer that question.
A.Yes, I’m despiting –
Q.Beg your pardon?
LAST QUESTION READ BY REPORTER
MR BOUCAUT:         I don’t know that your Honour made it clear – certainly clear to me or to anyone at the bar table – as to why he claims privilege. I invite your Honour to perhaps ask whether or not there are any reasons as to why he takes that stance.
HIS HONOUR:           Certainly.
HIS HONOUR
Q.Mr Zappia, you understand that I have directed you to answer the prosecutor’s question. (NOT ANSWERED)
Q.You have nodded. Is the answer ‘yes’; do you understand that.
A.Yes.
Q.You have told me that you will not answer the questions.
A.That’s right.
Q.You have told me that you will not answer the question, notwithstanding my direction that you do so; that’s so, isn’t it.
A.Yes.
Q.I have asked you why you take that position and you have repeated to me that you won’t answer any questions. Can you tell me the reasons why you won’t answer the questions.
A.Because I have an appeal pending and I don’t want to incriminate myself.

Further discussion ensued between the Judge and counsel, when counsel claimed that the privilege being asserted related to the defendant’s potential retrial and, inferentially, his exposure to a charge of perjury. During those submissions his Honour pointed out the difficulty in contemplating how the answer to that particular question could incriminate the defendant. His Honour then asked the defendant:
Q.Mr Zappia, have you told me all you wish to about your reasons for not following my direction to answer that question from the prosecutor.
A.No.
Q. Is there anything else that you want to tell me.
A.I written the reasons why on paper.
Q.Is there anything else that you want to tell me.
A.No.
After a further exchange not relevant for present purposes, the prosecutor was asked to put the balance of her questions. The trial proceeded:
Q.Who was present at the time when Rhiannon Ellul and Faraz Rasti were killed.
A.I decline to answer any questions.
HIS HONOUR:
Q. What are the reasons that you have for declining to answer that question, Mr Zappia.
A.I decline to answer all questions.
Q.I direct you to answer that question.
A.Well, I’m declining to answer the question.
Q.Why is that.
A.Because I don’t want to answer the question.
MS KELLY: I don’t propose to take it any further.
It was the refusal to answer those questions as directed by the trial Judge at the trial which constituted the second alleged contempt.
The evidence led on behalf of the Registrar before me comprised a single affidavit deposing to the relevant facts and exhibiting the relevant pages of transcript. It was conceded that in respect of all questions except the last one asked at the trial the answer ‘Yes’ would have been consistent with the defendant’s evidence at his trial and that he could have given relevant and admissible evidence as to who was present at the time when Mr Rasti and Ms Ellul were killed and who killed them. None of the questions required answers which ventured beyond the facts to which the defendant had deposed at his own trial.
The defendant sought to tender the transcript of submissions on penalty in respect of the one conviction of manslaughter which was not disturbed on the defendant’s appeal to the Court of Criminal Appeal. Those submissions took place on 20 June 2003. The purpose of the tender was to place before the Court as presently constituted the submissions of the prosecutor which relied upon the defendant’s refusal to give evidence at the Kamleh trial, and his indication that he did not know or recognise Kamleh, as suggestive of a lack of contrition or remorse on the part of the defendant. It was said that the submissions were relevant as a manifestation of the risk of jeopardy to which the defendant was exposed which justified his claim based on privilege against self-incrimination. Counsel for the Registrar objected to the tender, submitting that it was relevant only to the question of penalty if the defendant were found guilty of contempt. I indicated that I would rule on that objection in the course of delivering my reasons.
I reject the tender for two reasons. First, whether or not a contempt of court has been committed is to be judged upon the circumstances before the Court at the time of the alleged contempt, and not on subsequent events. In some circumstances, subsequent events may be relevant to determining the state of mind of the defendant and the true meaning of what he or she said, but this is not such a case.
Secondly, whether the defendant was relying on a privilege against self-incrimination in relation to his possible second trial, or whether he was relying on the privilege in relation to a possible charge of perjury, what was said by the prosecution in subsequent sentencing submissions for manslaughter, in reliance upon his refusal to answer the relevant questions, is not evidence relevant to the question of whether he had a justifiable claim to privilege at the time when it was made. The only claim to privilege asserted was a privilege against self-incrimination. It was not a privilege against relevant material being adduced for the purpose of his being sentenced for another crime.
I derive some comfort for this ruling from what appears to have been the position in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412. In that case, a witness had claimed the privilege in the course of giving evidence in a civil trial. There was an appeal against the judgment based on the trial Judge’s refusal to require the witness to answer questions. On appeal, evidence was sought to be led that the witness had in fact been convicted subsequently of a relevant criminal offence. The tender of that evidence was rejected, by a majority. No reasons of the majority were published. Kirby P gave his dissenting reasons at 417 – 419. What was rejected was evidence of the witness’s subsequent conviction as justification for his assertion of the privilege. The evidence rejected was evidence of a conviction. The position must be a fortiori where the evidence is not of a conviction but of submissions on sentence where the defendant had been convicted of the relevant crime before the date of the alleged contempt.
The relevant principles
In the first place, in order to found a charge of contempt for refusing to answer questions when directed by a Judge, the questions must be relevant to and necessary for the conduct of the proceedings: Attorney-General v Lundin (1982) 75 Cr App Rep 90; Nicholls v DPP (1993) 61 SASR 31. There is no dispute that the questions asked of the defendant were relevant to and necessary for the proper conduct of this trial.
Secondly, whilst the defendant bears a burden of establishing that there is good reason to accept his objection, there must be some latitude in allowing him to judge for himself the effect of any particular question: R v Boyes (1861) 1 B&S 311 at 311; 121 ER 730 at 730; Accident Insurance Mutual Holdings Ltd v McFadden (supra) at 422.
Thirdly, there must nevertheless be good reason to accept the objection as well founded. A mere claim by a witness to invoke the privilege will not be sufficient.
Fourthly, whether there is good reason to accept the objection as well founded will depend on the circumstances and nature of the testimony. There must be a reasonable ground that the witness may be implicated in some offence by his answer. The words I have emphasised may assume some importance later in the amplification of these principles.
The second, third and fourth principles to which I have referred are reflected in what Mayo J had to say in Brebner v Perry [1961] SASR 177 at 180 – 181:
“What is the general proposition in regard to the compulsion of a witness to answer where he objects? The matter was discussed and principles stated and elaborated in J. H. Sherring & Co. v Hinton [1932] SASR 233; 7 Austn Digest 755 and in Matthew v Flood [1938] SASR 312; 26 Austn Digest 232. Where a witness who is on oath objects that the answer to a question put to him may incriminate him, and there is good reason to accept the objection as well founded he will be excused. ‘The danger … must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things – not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suppose it to influence his conduct’: R v Boyes (1861) 1 B & S 311 at p 330 (121 ER 730 at p 738); Ex parte Reynolds; In re Reynolds (1882) 20 Ch D 294. Where the risk is removed by a pardon or by a lapse of time, certainly if there be a statutory limitation upon proceedings, the privilege of the witness no longer remains: Roberts v Allatt (1828) Moo & Malk 192 (173 ER 1128); Dover v Maestaer (1803) 5 Esp 93 (170 ER 749); Attorney-General v Cunard Steamship Co (1887) 4 TLR 177. The claim by the witness, although on oath, even if there be no doubt as to his credibility, is not sufficient. It must be shown to the Court, from the circumstances, and the nature of the testimony that is sought to be educed, that there is reasonable ground he may be implicated in some offence by his answer. ………
A point that, at times, may have some importance is that any fact a witness is wrongly forced to disclose in answer to questions after he had objected to answer will be inadmissible if criminal proceedings are subsequently brought against him: R v Garbett (1847) 1 Den 236 (169 ER 227); R v Noel (1914) 3 KB 848; R v Tuttle (1929) 21 Cr App R 85; R v Maywhort (1955) 1 WLR 848.”
That passage has been approved in this and other jurisdictions. Because of its significance to this case and to another principle to which I will refer, it is also worth noting here what Mayo J said at 182 - 183:
“Where an objection to answer is not bona fide for the protection of a witness himself, he will be compelled to answer. ‘There must certainly be a larger policy which requires that a witness should answer when the Judge thinks that he is objecting to answer, not bona fide with the view of claiming privilege to protect himself, but in order to prevent other parties from getting that testimony which is necessary for the purposes of justice’: Ex parte Reynolds; In re Reynolds (1882) 20 Ch D 294 at p 300. On the same topic O’Brien J said in R v Armagh Justices (1884) 18 Ir LTR 2 at p 3: - ‘It is the right of any magistrate to determine for himself upon the facts as to what his course should be in such a case. The answer given by the witness was mala fides, and I do not think she would have incriminated herself had she answered. … I am distinctly of opinion that the question did not involve her in any criminality; further I think the application was not bona fide, and, further, that this is the application of the publican himself,’ i.e., the party charged with an offence.
Apply that aspect to the present matter. The witness had already, so far as it had been shown to the Court, made himself liable to any prosecution that might have been laid. Can his objection to answer be treated as bona fide? I think not. He was not concerned with his own protection. His conduct was in the interest of the defendant.”
Where there is reason to doubt the genuineness of an assertion of privilege, as in a case where a witness may persistently assert that he is unable to remember, the test approved by Mason and Aickin JJ in Keeley v The Honourable Mr Justice Brooking (1979) 143 CLR 162 at 178 may also be appropriate:
“The judgment in Coward v Stapleton (1953) 90 CLR 573 stipulates the circumstances in which a court will be justified in concluding that a witness has been guilty of refusing to answer questions and thus of contempt of court where the witness has, in form, given answers to the questions put to him. What is required is ‘an evinced intention to leave a question or questions unanswered’. We do not read the judgment as saying that such an intention is established only when the purported answers can be described as ‘plainly absurd’ or ‘palpably false’. Indeed, it is clear that these expressions were merely employed by the Court to characterize the evidence of the appellant in that case. What does emerge as a general proposition from Coward v Stapleton (1953) 90 CLR 573 at p 578 is that ‘there must be a manifestation in some form of an intention on the part of the witness not to give a real answer’. And as the Court observed, the manifestation of that intention may ‘depend upon considerations of degree, which may strike different minds in different ways.’ ”
Privilege in relation to a possible retrial
As has been pointed out, the defendant sought to justify his claim for privilege on two bases, namely that the answers to the questions might tend to incriminate him on a possible retrial following his appeal against conviction, and that they might also tend to incriminate him for perjury. I deal first with the claim in relation to the possible retrial.
The defendant had voluntarily given sworn evidence at his own trial concerning the events about which he was being questioned on this trial. The questions to which objection was raised, both on the voir dire and at the trial, required answers which did not extend beyond the compass of the evidence already given by the defendant. It would have been possible for the prosecution on his retrial, if it occurred, to lead evidence of what the accused had said on his first trial as evidence of his guilt.
There is no doubt that the privilege against self-incrimination can be waived: BTR Engineering (Australia) (formerly Borg-Warner Australia) Ltd v Patterson (1990) 20 NSWLR 724 per Giles J at 727 – 728; Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 per Kirby P at 423, Clarke JA at 431 and Meagher JA at 437 – 438. What was in dispute in the latter case was the extent of the possible waiver. As Kirby P said at 423 – 424:
“It will be rare that a person is taken to have waived all rights and privileges in respect of any prosecution for any offence arising out of circumstances only generally defined. The point of difficulty will be presented by the definition of the subject matter of the waiver. This will require assessment of the reasonable interpretation to be placed upon the conduct of the witness said to amount to the waiver.”
Even Clarke JA who doubted that there could be an implied waiver by the making of a relevant out of court statement to another person said, at 431:
“It must be accepted that a person can waive the privilege to decline to answer a question on the ground that the answer might have a tendency to incriminate him. He or she can do so by declining to make the claim and by answering the question. Whether, however, he or she can impliedly waive the right to decline to answer is not so clear.”
The justification in the eyes of the majority (Kirby P and Clarke JA) in that case for upholding the privilege, where an earlier written statement had been made to the police concerning certain criminal activities, was that the making of the earlier statement in that case was insufficient to waive the privilege against self-incrimination in respect of other crimes which might arise from the oral elaboration of the written document.
That question does not arise in this case. The questions asked by the prosecutor were carefully framed to ensure that they did not go outside the range of the questions previously answered by the defendant on his own trial. He had, in effect, previously answered the questions on oath, and had thereby waived the privilege.
In the course of his judgment in the BTR Engineering Case Giles J referred to three possible bases for rejection of a claim for privilege where an earlier statement had been made. The first was by way of conventional waiver which I have just discussed, his Honour holding in that case that by signing particular documents on an earlier occasion, the witness waived any entitlement to say on a subsequent occasion that the disclosure of the material contained in those documents would have a tendency to expose him to a criminal charge (at 728). The difficulty with that concept is ascertaining what, in a particular case, has been waived. That was the question which engaged the New South Wales Court of Appeal in the Accident Insurance Mutual Case.
The second basis related to the reasoning of Mayo J in Brebner v Perry (supra) at 182 – 183, a passage which I have already set out. Giles J said (at 729):
“The reasoning here is not that of waiver, but rather invites consideration of the purpose of the privilege, namely to protect the witness. Where the claim to privilege is not taken for that purpose but for a different purpose and is thus not bona fide, then the claim will not be recognised.”
This says no more than that the claim for privilege cannot merely be taken at face value and will be rejected if it is, in reality, being made for some other purpose. In my opinion the defendant’s claim for privilege can be rejected on this basis also for reasons which will become apparent.
The third basis referred to by Giles J was that the purpose of the privilege “is to protect the witness against the jeopardy of criminal charges, and the purpose will not be fulfilled where the answer to the question will not add to the jeopardy in which he already stands” (at 730). This basis, while not cast in terms of waiver, is similar in effect. It assumes that the witness has said something on oath which undermines the privilege claimed in such a way that the protection of the privilege has been lost in relation to the answer to the particular question. I do not consider that it is incompatible with what the High Court subsequently decided in Reid v Howard (1995) 184 CLR 1 referred to below.
This third basis must also apply to reject the defendant’s claim for privilege in this case. The defendant had already given extensive evidence on his own trial in relation to the events the subject of the questions which he refused to answer on this occasion. If the answers were relevant to prove his guilt on a retrial, they could easily have been proved at that retrial by leading evidence of his answers at the first trial. His answers to these questions would not add to the jeopardy in which he already stood.
I return to Giles J’s second basis referred to above. This relates also to the principle which I referred to earlier as stated by Mason and Aickin JJ in Keeley v The Honourable Mr Justice Brooking (supra). A brief review of his answers will indicate that the defendant had another motive in refusing to answer.
The defendant’s initial claim to privilege was based on the fact of his possible retrial. That, he said, was the “only reason”. However, it soon became apparent from his further initial answers that he was trying to isolate himself from the facts of the case by claiming that he did not know the accused and by then repeating, on many occasions, that he declined to answer the questions without giving any reasons. By simply declining to answer questions he may have been acting on advice given by his counsel, but he did not assist his case by refusing to give any reasons. Indeed, his real motive came to the fore when, perhaps inadvertently, he did give a reason, namely that he was not a rat, and by making it quite clear that whatever question was asked he would decline to answer it. At the trial, when he continued to decline to answer any questions, and having no doubt obtained further legal advice, he did say, when asked his reasons, that he had an appeal pending and he did not want to incriminate himself. However, I have no difficulty in considering that his answers given on the trial must be coloured by what he had previously said during the course of the voir dire. In my opinion, the claim for privilege, in so far it related to the possible retrial, was not taken for that purpose. It was taken because he did not want to give evidence against his co-accused on this trial.
The claim for privilege on the ground of possible perjury
For similar reasons I do not consider that the defendant’s claim of privilege on the basis that the answers might tend to incriminate him for perjury had any substance. I have already referred to the evidence which showed his true reasons for refusing to answer. There are added reasons why this claim should be rejected.
The possibility of perjury was not an issue when the defendant was first sworn and began giving evidence. It was not mentioned by him and was not foreshadowed by his counsel, despite his counsel having had an opportunity to obtain instructions. It only arose after the defendant himself volunteered in evidence that he did not know the accused. By making that statement, the defendant indicated that either the whole of his previous testimony was false or that that statement was false. The two could not stand together. It was only after he had made that statement that his counsel then sought to mount an argument based on privilege against possible self-incrimination for perjury. In all the circumstances which I have described, I reject that as being the defendant’s purpose or reason for refusing to answer the questions. I repeat that the real reason was that he did not want to give evidence against his co-accused on this trial.

That is sufficient to dispose of the defendant’s claim for privilege against self incrimination for possible perjury. The question remains whether, for other reasons, the claim was unjustified.
In Reid v Howard (1995) 184 CLR 1 the members of the High Court suggested that there was no exception to the privilege, other than by statute or waiver. In that case a chartered accountant was sued by some former clients, with whom he stood in a fiduciary relationship as trustee, for various remedies, including an order for an account, a Mareva injunction and an order requiring disclosure of his assets and the source of funds from which they were acquired. He claimed privilege against self-incrimination from making any relevant disclosure. The claim was upheld by the High Court.
Against the defendant it was argued, unsuccessfully, that there was an exception in civil proceedings brought by a beneficiary against a trustee. Deane J said, at 5:
‘The privilege against self-incrimination is deeply ingrained in the common law’. It reflects ‘a cardinal principle’ which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts.” (Footnotes omitted).
In their joint judgment, Toohey, Gaudron, McHugh and Gummow JJ recognised (at 12) that the privilege could be abridged by statute or waived. They reviewed a number of early English cases said to give rise to an exception in civil proceedings brought by a beneficiary against a trustee. The cases did not support such an exception. At the end of the review their Honours concluded (at 14):
“There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application – a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against “the peril and possibility of being convicted as a criminal”. For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings”. (Footnotes omitted).
The statement of principle in the joint judgment was directed to the invocation of the privilege in civil proceedings of the type in question. However, it was stated in extremely wide terms. A similar conclusion was reached in relation to civil proceedings by the House of Lords in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380.
There can be no doubting the importance of the principle described by the members of the High Court in Reid v Howard. The claim for privilege against self-incrimination arises as an integral part of the right to silence. It protects the guilty and those accused of guilt from being under any obligation to make incriminatory admissions: Ligertwood “Australian Evidence” (Third Edition) at 5.54. In Paxton v Douglas (1812) 19 Ves Jun 225 at 227 – 228; 34 ER 502 at 503, Lord Eldon LC said:
“In no stage of the proceedings in this Court can a party be compelled to answer any question, accusing himself, or any one in a series of questions, that has a tendency to that effect: the rule in these cases being, that he is at liberty to protect himself against answering, not only the direct question, whether he did what was illegal, but also every question, fairly appearing to be put with the view of drawing from him an answer containing nothing to affect him, except as it is one link in a chain of proof that is to affect him …
I have looked into all the cases; and I find the distinctions between questions, supposed to have a tendency to criminate, and questions, to which it is supposed answers may be given, as having no connection with the other questions, so very nice, that I can only say, the strong inclination of my mind is to protect the party against answering any question, not only that has a direct tendency to incriminate him, but that forms one step towards it, …..”
The privilege protects the person from being required to make admissions or statements concerning past conduct which might later be able to be used against that person on prosecution for a criminal offence.
However, what might be seen to be an exception to the general proposition formulated by Lord Eldon in Paxton v Douglas and by the High Court in Reid v Howard has been recognised in limited circumstances where the claim relates to a possible conviction for perjury. It is that where the answer to a question might give rise to a charge of perjury for something already said in the same proceedings, the protection will not be afforded: Rice v Gordon (1843) 13 Sim 580; 13 LJ Ch 104; 7 Jur 1076; 60 ER 225. The most comprehensive report of the judgment of Shadwell V-C appears in 13 LJ Ch 104:
“The question is a very short one. The Court must take care that the rule protecting a defendant from answering so as to criminate himself, is so used as not to destroy the justice which the Court administers. A defendant, after swearing falsely, may not protect himself by his own misconduct. In the case cited (Paxton v Douglas), which was before Lord Eldon, just the same set of circumstances occurred, but then it was not in the suit or with reference to it; this, on the contrary, has occurred since the commencement of the suit: if I were to do this, I should be holding out an inducement to perjury.
This case being again mentioned upon a subsequent day, -
The Vice Chancellor said, if I were not to grant this motion, I should be inducing a person to commit perjury, for the purpose of refusing to produce any documents which might injure his case.”
This decision was followed in Emanuel v Emanuel [1982] 1 WLR 669; [1982] 2 All ER 342 and Distributive Automatici Italia SpAv Holford General Trading Co Ltd [1985] 1 WLR 1066 at 1073; [1985] 3 All ER 750 at 755. The exception was discussed and assumed to be correct by Rimer J in Cobra Golf Ltd v Rata [1998] Ch 109 at 158. The exception was not applied in that case for reasons to be mentioned.
Rice v Gordon was referred to in the joint judgment in Reid v Howard in the following terms (at 13):
“Rice v Gordon was an unusual case. An indictment was pending against the defendant for perjury committed in the very cause in which the plaintiff now sought production of documents the defendant had admitted to be in his custody. Shadwell V-C said that, if he were to refuse the motion for discovery, this would provide an inducement to a defendant to commit perjury at an early stage in the cause so as to prevent the court from administering justice in the suit.”
The cases of Emanuel and Distributive were not referred to.
Rice v Gordon, Emanuel and Distributive were also not referred to at all in Rank Film Distributors Ltd v Video Information Centre. Cobra Golf was decided after Rank Film Distributors.
Can such an apparent exception survive the all embracing statement of the principle in Reid v Howard? Its justification by Shadwell V-C in Rice v Gordon would appear to require such an exception. There are sound reasons why the privilege should not be allowed in such circumstances. If the privilege could successfully be invoked merely because it might tend to show that the person’s previous statement on oath in the proceedings was false, great harm would be done to the administration of justice. It would mean that anyone who had sworn a false affidavit tendered in the proceedings, or anyone who had given false evidence-in-chief, could effectively avoid cross-examination designed to reveal the falsity of the previous evidence merely by claiming the privilege. The effect only has to be stated to reveal the difficulty of allowing the privilege to prevail.
The question has been considered, obiter, by Byrne J in R v Guariglia [2000] VSC 13. The defendant in that case was prosecuted for contempt of court for refusing to answer questions. He claimed privilege against self-incrimination where, on a previous trial, he had made a number of admissions in writing but not under oath. Byrne J, for reasons given decided that the witness was not entitled to refuse to answer any of the six questions the basis of the charge because, whatever the answers, they would not tend to incriminate him for perjury. However, Byrne J concluded:
“I would not like it to be taken that I necessarily accept the proposition that a witness who has given evidence in a proceeding can rely upon the privilege against incrimination in order to frustrate cross-examination in that proceeding which is directed to obtaining answers tending to show that this previous evidence was false, even perjuriously false. Authority on this point is, not surprisingly, sparse. In an adversarial common law system great importance is given to the role of cross-examination as a means of testing the reliability of a witness’s evidence and it will be a brave or desperate witness who seeks refuge in such a claim to privilege when pressed in cross-examination. In any event, I think it very unlikely that this refuge is available. To adopt the statement of the Vice-Chancellor made over 150 years ago in a rather different and unusual case, to permit a witness to commit perjury at an early stage of evidence and then to raise the privilege, thereby denying an opposing party the right to test that evidence or to try to show the witness to be a false witness, would prevent the court from administering justice: Rice v Gordon……”
Byrne J referred to the statement of the High Court in Reid v Howard:
“In these circumstances the question may arise how the Vice-Chancellor’s statement can be accommodated with modern principle. The privilege may be waived. It may be, therefore, that a witness who deposes to a fact upon examination must, so long as that evidence stands unretracted, be taken as having waived the right to refuse to answer questions in that examination where this refusal is based on the sole ground that the questions may tend to expose the witness to the charge of perjury in giving that earlier evidence: See Berner v Schlesinger 178 NYS 2d 135 (1957), affirmed 175 NYS 2d 579 (1958). Alternatively it may be seen as part of the obligation of the witness to testify to the whole truth, not to parts of it only: See Annest v Annest 298 P 2d 483 at 484 (1956). In any event, if the law were otherwise, the tribunal of fact may be left with the uncontradicted and unchallenged evidence of a witness against whom it would not be entitled to draw an adverse inference as to credit by reason of the reliance upon the privilege: R v Hood (1997) 91 A Crim R 526 at 528, per Hunt CJ at CL.”
What, then, is the justification for the exception?
It is to be noted that the High Court in Reid v Howard did not disapprove of Rice v Gordon. It merely did not support the proposition being advanced in that case, namely that the privilege against self-incrimination did not apply to a trustee in an action brought by his fiduciaries.
In my opinion, the giving of the justification for rejecting the claim in these limited circumstances lies in treating the earlier evidence as a form of waiver. Once a witness gives sworn evidence-in-chief or makes a voluntary sworn statement in proceedings knowing it to be false, he does so knowing that he exposes himself to submission to cross-examination by any proper means designed to elicit the truth in those proceedings. That includes a process which may expose the witness to a charge of perjury. He effectively waives his right to claim the privilege in those proceedings. By making a knowingly false statement on oath he knows that he is submitting himself to the due process of the Court in ascertaining the truth in those proceedings. If, as I believe, waiver is the correct rationalisation for what appears to be an exception to the privilege, it does not amount to an exception to the rule as stated in Reid v Howard.
Whether the loss of the privilege is treated as an exception to the general rule or, as I prefer, a form of waiver of the privilege, it would appear that Attorney-General v Wallace (1983) 65 FLR 15 at 24 was wrongly decided where the claim for privilege was allowed in respect of evidence given earlier in the same proceedings. Rice v Gordon and Emanuel do not appear to have been cited in that case.
However, all the cases cited confine the loss of privilege against self-incrimination for perjury to a situation in which the privilege is claimed in respect of sworn evidence given in the same proceedings in which the privilege is sought to be asserted. That is the necessary effect of and limitation on the waiver.
In Cobra Golf Ltd v Rata [1998] Ch 109 one of the questions concerned whether, in subsequent but related proceedings, the privilege could be applied so as not to require an answer which might incriminate the witness for a charge of contempt in the earlier proceedings. After discussing the cases relating to the exception concerning perjury in the same proceedings, Rimer J expressed the view (at 158) that he could “see much force in (the) submission that there ought likewise to be no privilege against self-incrimination for civil contempt committed in the same proceedings in which the privilege is sought to be asserted”. However, he found it unnecessary to decide that point because the privilege was being asserted against self-incrimination alleged to have been committed in the earlier proceedings and before the institution of the proceedings in question. They were separate proceedings. He distinguished the cases of Rice, Emanuel and Distributori on that basis.
Does the waiver apply to giving evidence on the same topic in subsequent proceedings? Here the witness is in a different situation. Assuming that the proceedings have come to an end, the witness cannot be recalled for further cross-examination in those proceedings. Nothing the witness may now say can affect the result of the previous proceedings. The privilege against self-incrimination for past perjury must exist, as it exists in respect of any crime.
It is tempting to say that once a person has given sworn evidence on a topic in one proceeding the person should be required to expose himself or herself to cross-examination in subsequent proceedings on the same subject matter, including running the risk of cross-examination based on any prior inconsistent statement. However, claiming the privilege in the second proceedings does not amount to an admission that the previous evidence was false, any more than claiming the privilege in respect of a question which asks if the witness has committed some other offence is an admission of committing that offence. There can be no prior inconsistent statement on which to cross-examine the witness until the inconsistent statement is made. The belief that, if the evidence is given, there may be an inconsistent statement on which the witness could be cross-examined is no justification for requiring the witness to make it and, at the same time, admit to perjury.
If knowingly making a false statement on oath constitutes a waiver of the privilege only to the extent necessary to allow due process of the Court to occur in the proceedings, it is difficult to see how the privilege can be lost in subsequent proceedings where to make the claim does not impede the due process of those proceedings. That, no doubt, is the reason for restricting the waiver to the proceedings in which the false evidence is given.
The question then arises as to whether the two proceedings in this case are separate proceedings or part of the same proceeding. The defendant and Kamleh were both jointly charged with the same murders. It was only by an order of a Judge of this Court that separate trials took place on the application of Mr Kamleh, presumably to ensure a fair trial for Mr Kamleh, and not related in any way to the defendant’s claim for privilege.
For whatever reason, the effect of the order was to ensure that evidence in the two trials was to be given separately before different juries, requiring a substantial amount of the same evidence to be given at the second trial. However, witnesses were required to be re-sworn. The issues required to be determined at the two trials were different. If it were possible for the defendant’s evidence in his own trial to be led as evidence-in-chief on Mr Kamleh’s trial, then the claim for privilege might have no justification. But evidence cannot be led in that way. For all practical purposes there were two separate proceedings, and the defendant was entitled to claim the privilege, if it was otherwise justified, on Mr Kamleh’s trial.
However, as I have already found, the claim was not genuine and was made for a different and unacceptable purpose.
In my opinion, the defendant had also waived the claim for privilege in the Kamleh proceedings. He volunteered the statement soon after being sworn that he did not know the accused. If that statement was true it rendered his testimony in his own trial false. By making such a statement he made that implied admission. In that sense, he had waived the privilege. But the statement he made on oath was patently inconsistent with his previous evidence. If it was the statement which was untrue rather than his previous evidence, he had waived the privilege otherwise available to him in the Kamleh proceedings on the basis discussed above. He was required to answer the questions. Either way, he must be taken to have waived the privilege to which he might otherwise have been entitled. This is a further reason for rejecting the claim based on any privilege against self incrimination for perjury.
Conclusion
In my opinion the defendant was not entitled to claim the privilege against self-incrimination on either basis on which it was claimed. I find the defendant guilty of both charges of contempt.

[2003] SASC 276

22 August 2003