SD v NSW Crime Commission

[2012] NSWSC 1642

Supreme Court

New South Wales

Case Title:	SD v NSW Crime Commission
Medium Neutral Citation:	[2012] NSWSC 1642
Hearing Date(s):	11 October 2012
Decision Date:	18 October 2012
Before:	Adamson J
Decision:	(1) The decision of the Commission made on 15 August 2012 that the plaintiff is not entitled to refuse to answer the two questions put to him to which he objected is affirmed. (2) The summons is otherwise dismissed. (3) Unless an application for a different order for costs is made within seven days of the date of this order, order the plaintiff to pay the Commission's costs.
Catchwords:	CRIMINAL LAW - criminal practice - examinations pursuant to the New South Wales Crime Commission Act 1985 - application for review of decision that examinee before the NSW Crime Commission is not entitled to refuse to answer questions - whether the requirement that an examinee before the NSW Crime Commission answer questions infringed his privilege against self incrimination - meaning of "reasonable excuse" within s 18 of the Act
Legislation Cited:	- Royal Commissions Act 1902 (Cth) - Crimes Act 1900 - New South Wales Crime Commission Act 1985 - Commissions of Inquiry Act 1950 (Qld)
Cases Cited:	- R v CB; MP v R [2011] NSWCCA 264 - Ganin v NSW Crime Commission (1993) 32 NSWLR 423 - Z v NSW Crime Commission (No 2) [2005] NSWSC 1388 - R v Seller; R v McCarthy [2012] NSWSC 934 - Sorby v Commonwealth [1983] HCA 10; 152 CLR 281 - Hamilton v Oades [1989] HCA 21; 166 CLR 486 - Australian Crime Commission v OK [2010] FCAFC 61; 268 ALR 281
Category:	Interlocutory applications
Parties:	SD (Plaintiff) NSW Crime Commission (Defendant)
Representation
- Counsel:	Counsel: D Miralis (sol) Plaintiff I Temby QC/P English (Defendant)
- Solicitors:	Solicitors: Nyman Gibson Stewart (Plaintiff) NSW Crime Commission (Defendant)
File Number(s):	2012/255766
Publication Restriction:	None

JUDGMENT

Introduction

1. By summons filed on 16 August 2012 the plaintiff applies for a review by this Court, pursuant to s 19(2) of the New South Wales Crime Commission Act 1985 (the Act), of the decision by the New South Wales Commission (the Commission) that the plaintiff is not entitled to refuse to answer questions put to him during an examination hearing on 15 August 2012 The Court is empowered by s 19(4) to affirm, or set aside, the decision.

The background to the plaintiff's application

1. The evidence comprised a statement of agreed facts as to the background to the examination of the plaintiff by the Commission. It is not necessary to reproduce the statement in full. The following summary is sufficient to deal with the matter in issue.

2. Shootings occurred in Greenfield Park in January 2012. It was alleged that shots had been fired both from, and in the direction of, a Toyota Corolla vehicle.

3. On 9 March 2012 the police executed a search warrant at the plaintiff's residence. The warrant was granted on the basis that there were reasonable grounds to suspect that the plaintiff was involved in an offence pursuant to s 33A of the Crimes Act 1900, namely discharging a loaded firearm with intent. One of the officers who executed the warrant was both a serving member of the NSW Police and a member of staff of the Commission.

4. Pursuant to the warrant, the police seized various items including the vehicle alleged to be the Toyota Corolla involved in the shootings. The police informed the plaintiff that they "consider him a suspect and that they have evidence that he was an offender".

5. On 17 July 2012, the Commission issued a summons pursuant to s 16 of the Act requiring the plaintiff to attend and give evidence before the Commission on 3 August 2012. The summons identified the general nature of the matters about which the Commission intended to question the plaintiff in the following terms:

   "...knowledge of the public place shooting incidents in Greenfield Park in 2012"

6. The plaintiff sought, and, on 2 August 2012, was refused, a stay of the hearing before the Commission on 3 August 2012.

7. The Commission's examination of the plaintiff was adjourned to 6 August 2012. Prior to commencement of the examination, the Commissioner made a non-publication direction pursuant to s 13(9) of the Act as follows:

   "The Commission directs that any evidence given by this witness or tendered or produced in the presence of this witness or any information that might enable this witness to be identified as a person who has given evidence before the Commission shall not be published except in a manner and to such persons as the Commission may specify."

8. Questions were then asked of and answered by the plaintiff.

9. The plaintiff, by his solicitor, Mr Miralis, sought a direction from the Commissioner prohibiting the publication of the examination transcript to members of the NSW Police or any other investigative body investigating the plaintiff with respect to the matters the Commission was inquiring about. The Commissioner declined to give such a direction.

10. On 15 August, the Commissioner directed as follows:

    "Pursuant to subsection (9) of section 13 of the New South Wales Crime Commission Act 1985 the Commission directs that any evidence given before it, the contents of any document or a description of any such thing produced to the Commission in the course of the hearing, any information that might enable a person who has given evidence before the Commission, namely, [the plaintiff], to be identified or located or the fact that [the plaintiff] has given evidence at this hearing shall not be published except in such manner and to such persons as the Commission specifies...

    I, ancillary to the ... direction just given, I further direct that the following classes of persons are specified as persons to whom the contents of this hearing and the identity of the witness may be published:

    (a) Dennis Miralis, Solicitor;
    (b) [the plaintiff] himself;
    (c) The persons appointed to assist the Commission in this hearing and who are present in the hearing room, of whom there are three;
    (d) Myself;
    (e) Such lawyers of the Commission employed by the Commission who have carriage of matters related to this hearing;
    (f) Those persons who are monitoring the audio/visual recording of the Commission and are charged with the responsibility of typing any transcript that is required of it."

11. The plaintiff, by his solicitor, then sought an order for non-publication to the NSW Police or the Director of Public Prosecutions (DPP). The Commissioner refused his application.

12. The examination of the plaintiff proceeded further on 15 August 2012. Questions were asked about a shooting which was said to have occurred in July 2012, which the plaintiff answered. However, the plaintiff refused to answer the following two questions:

    "Where were you during the evening of the 11th of January 2012?"

    "The Commission has been told that you, [person 1] and [person 2] were seen in a dark blue Commodore outside that house and that two of the occupants of the vehicle discharged a total of 27 shots into the house. What do you say to that?"

13. The Commissioner ruled that the plaintiff was required to answer these two questions. The ruling was made in the presence of the plaintiff and accordingly s 19(1)(c) of the Act was engaged.

14. The plaintiff contended that he was entitled to refuse to answer the questions on the following grounds:

    (1)he was a person who may be charged with offences relating to shooting incidents on 11 January 2012 and 12 July 2012;

    (2)no irrevocable non-publication order was made prohibiting the publication of the evidence to members of the NSW Police or the DPP, or any other investigative body involved in investigating the plaintiff for the offences about which he was being questioned; and

    (3)he would, accordingly, be deprived of the protections recognised in R v CB; MP v R [2011] NSWCCA 264 (CB's Case) and if he were charged, his right to a fair trial would be prejudiced.

15. The Commission decided the claims were not justified and notified the plaintiff of its decisions.

16. At the time of the Commission hearings, no charge had been laid against the plaintiff, and that remains the case.

The statutory framework

1. Section 6 of the Act provides in part:

   "6 Principal functions of the Commission

   (1) The principal functions of the Commission are:

   (a) to investigate matters relating to a relevant criminal activity referred to the Commission by the Management Committee for investigation ..."

2. The Act authorises the Commission to hold hearings for the purposes of an investigation: s 13(1). Section 13(9) of the Act relevantly provides:

   "(9) The Commission may direct that:

   (a) any evidence given before it,

   (b) the contents of any document, or a description of any thing, produced to the Commission or seized pursuant to a search warrant issued under section 11,

   (c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

   (d) the fact that any person has given or may be about to give evidence at a hearing,

   shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence."

   [Emphasis added.]

3. The Commission accepted for the purposes of the hearing that the plaintiff was a person who "may be charged" with an offence within the meaning of s 13(9) and accordingly that it was obliged to make a non-publication order so as not to prejudice any future trial that might take place.

4. Section 18 of the Act relevantly provides:

   "18 Failure of witnesses to attend and answer questions etc

   ...

   (2) A person appearing as a witness at a hearing before the Commission shall not, without reasonable excuse or except as provided by section 18A or 18B:

   ...

   (b) refuse or fail to answer a question that the person is required to answer by the member presiding at the hearing, or

   ...

   Maximum penalty: 20 penalty units or imprisonment for 2 years, or both."

5. Section 18B of the Act relevantly provides:

   "18B Privilege concerning answers and documents

   (1) A witness summoned to attend or appearing before the Commission at a hearing is not (except as provided by section 18A) excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

   (2) An answer made, or document or thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings."

6. Section 19 relevantly provides:

   "19 Applications to Supreme Court

   (1) Where:

   ...

   (c) a person claims to be entitled to refuse to answer a question put to the person, or to produce a document that the person was required to produce, at a hearing before the Commission,

   the Commission shall decide as soon as practicable whether in its opinion the claim is justified and notify the person of its decision.

   (2) If the person is dissatisfied with the decision, the person may apply to the Supreme Court for an order of review in respect of the decision.

   ...

   (4) On an application for an order of review in respect of a decision of the Commission under subsection (1), the Supreme Court may, in its discretion, make an order:

   (a) affirming the decision, or

   (b) setting aside the decision..."

The issues to be determined

The nature of this Court's jurisdiction

1. The plaintiff's primary submission was that the jurisdiction of this Court to review the decision of the Commission that the plaintiff was not entitled to refuse to answer the questions is a review on the merits and that no error need be shown. The plaintiff emphasised the word "discretion" in s 19(4) in support of his contention that the power of this Court is not confined to judicial review of an administrative decision on the basis of error. The plaintiff contended that the point had not been regarded as authoritatively determined by Ganin v NSW Crime Commission (1993) 32 NSWLR 423.

2. The plaintiff relied on the following passage from Z v NSW Crime Commission (No 2) [2005] NSWSC 1388 at [34]-[36], per Johnson J:

   "Section 19(4) enables the Supreme Court 'in its discretion', to make an order affirming or setting aside the decision of the Commission. The statutory reference to the Court exercising a discretion in this respect tends to support the view that the function being carried out by the Court is not a narrow one. Likewise, the observation of Kirby P in Ganin, above, that the Court may consider whether the person had a 'reasonable excuse' at the time when the person appeared before the Commission, whether that head of 'reasonable excuse' was advanced at that time or not.

   In the event, I do not consider that it is necessary to explore this question further to determine the present application. The only evidence which is before me is the material which was before the Commission at the time when it made its decisions on 2 February 2005. There is no additional evidence from the Plaintiff. The arguments which have been advanced to this Court as to 'reasonable excuse' involve the same heads of claim as those made before the Commission on 2 February 2005, although more elaborate legal argument has occurred both in writing and orally before me.

   In the circumstances of this case, the function which I am undertaking under s 19(4) NSWCC Act will require a decision, on the material before me, as to whether the Plaintiff had a 'reasonable excuse' for the purposes of the NSWCC Act, on the grounds advanced before me, which entitled him to refuse to answer the questions put to him on 2 February 2005."

3. The defendant submitted it had been authoritatively that these proceedings do not constitute a merits review by reason of what the Court of Appeal said in Ganin at 439, per Kirby P, Meagher JA and O'Keefe AJA agreeing.

4. The defendant submitted that the words "reasonable excuse" were apt to include an objection on the grounds of relevance, such as for example would occur if a question were asked, the answer to which could not be regarded as "relating to a relevant criminal activity referred to the Commission by the Management Committee for investigation" within the meaning of s 6 of the Act. The defendant also submitted that an examinee could also have a "reasonable excuse" for refusing to answer a question or providing information or documents if to do so would be oppressive. As another example of a "reasonable excuse", the defendant instanced a question being asked after proceedings had already been commenced in circumstances which would amount to an abuse of process.

5. The precise ambit of this Court's jurisdiction under s 19 of the Act does not fall for determination in the instant case. Nonetheless, the fact that this Court is empowered only to make either an order affirming, or setting aside, the decision, provides a powerful indication against merits review.

6. In any event, the basis on which the plaintiff contends that he had a reasonable excuse for refusing to answer the two questions was that the requirement to answer them infringed his privilege against self-incrimination because there was no safeguard to protect him against derivative use of the answers. This raises a matter of law. If legal error be found, then the decision to require the plaintiff to answer the questions ought be set aside. Whether the derivative use immunity has been abrogated by the Act is a matter of statutory construction and will be considered further below.

Whether the Commission's decision was erroneous

1. The plaintiff submitted that once he had been identified as a suspect, he ought to have been charged with an offence or offences and brought to trial. He contended that in circumstances where the evidence that the plaintiff was an offender was available by 9 March 2012 when the search warrant was executed, it was illegitimate for the Commission to require the plaintiff to answer the two questions objected to when the evident purpose of at least the second of the two questions was to obtain an admission from the plaintiff as to his commission of an offence, rather than to investigate the commission of an offence.

2. The plaintiff further submitted that the dual status of the police officer who executed the search warrant as a member of the NSW Police and an officer of the Commission indicated the need for the more expansive non-publication order sought by the plaintiff at the hearing. He submitted that the officer would have been obliged to inform the NSW Police of the results of the warrant as part of his duties.

3. The plaintiff submitted that unless an irrevocable non-publication order was made preventing the Commission from disclosing his answers to the NSW Police and the DPP, his right to a fair trial would be irremediably prejudiced. This prejudice would arise, according to the plaintiff, because the prosecuting authorities would have access to potentially incriminating answers and could use them derivatively in the prosecution of the plaintiff.

4. The plaintiff contended that protection from derivative use of incriminating answers was as much part of the privilege against self-incrimination as protection from direct use of incriminating answers. He submitted that although his answers could not be tendered in any proceedings, by reason of the prohibition in s 18B(2), this was not sufficient to protect him from their derivative use by the NSW Police or the DPP. He referred to legislation in other jurisdictions where a different approach had been taken to the abrogation of the privilege against self-incrimination to the one taken by the Act.

5. The Commission submitted that this Court ought not engage in speculation as to what might transpire if and when the plaintiff is charged and if and when the plaintiff faces a criminal trial for offences covered by the Commission's investigation. It submitted that there is no present question as to any interference with the administration of justice since that stage has not been reached, and may never be reached. The Commission distinguished R v Seller; R v McCarthy [2012] NSWSC 934 and CB's Case on the basis that those cases considered situations whether the relevant person had already been charged.

6. The Commission submitted that the question whether the plaintiff had a "reasonable excuse" turned on whether Parliament can be taken to have abrogated the privilege against self-incrimination except in so far as the direct use of incriminating answers is concerned. It submitted that s 18B(1) abrogated all aspects of the privilege against self-incrimination but that s 18B(2) restored a right to the examinee not to have his or her answers tendered in evidence against him or her.

7. The Commission relied on Sorby v Commonwealth [1983] HCA 10; 152 CLR 281 (Sorby), in which the High Court considered provisions in the Royal Commissions Act 1902 (Cth). Section 5(1) of this Act provided that any person served with a summons who fails without reasonable excuse to attend shall be guilty of an offence. "Reasonable excuse" was defined by reference to what would amount to the same in a court of law. Section 6 provided that a witness who was summonsed to appear before the Royal Commission and who refused to answer a question was guilty of an offence. Section 6DD provided that a statement made by a witness is not admissible in evidence against the witness in any civil or criminal proceedings in any court. Gibbs CJ said, at 295:

   "... in my opinion, the presence of s 6DD in the Royal Commissions Act 1902 was not sufficient to reveal a clear intention to enact that a witness called before a Royal Commission should not be entitled to refuse to answer questions on the ground that the answers might tend to incriminate him. I therefore hold that in September and October 1982, when the plaintiffs were called before the Commissioner, they were entitled to refuse to answer questions put to them under the Royal Commissions Act 1902 if they had reasonable ground to apprehend danger of incrimination if the questions were answered."

1. The Royal Commissions Act 1902 was amended and a new s 6A was added in the following relevant terms:

   "(1) It is not a reasonable excuse for the purposes of sub-section 3(2) for a person to refuse or fail to produce a document or other thing that he was required to produce at a hearing before a Commission that the production of the document or other thing might tend to incriminate him.

   (2) A person is not entitled to refuse or fail to answer a question that he is required to answer by a member of a Commission on the ground that the answer to the question might tend to incriminate him."

2. Of the new provision, s 6A, Gibbs CJ (with whom Mason, Wilson and Dawson JJ relevantly agreed, at 305) said, at 296:

   "There cannot be the slightest doubt that s 6A of the Royal Commissions Act 1902 as amended (if valid) has the effect that a witness before a Royal Commission conducted under that Act is bound to answer questions if required to do so by a member of the Commission, notwithstanding that his answers might tend to expose him to a criminal charge."

3. Their Honours also considered the material provisions of the Commissions of Inquiry Act 1950 (Qld) which relevantly provided some protection to a witness who may incriminate himself in answer to a question by rendering his answer inadmissible as evidence against him in civil or criminal proceedings. The High Court observed that such a provision does not provide protection which is co-extensive with the protection given to him by the privilege. Mason, Deane and Dawson JJ said, at 310:

   "This is because the privilege protects the witness not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character."

4. Sorby has the effect that the proper construction of s 18 and s 18B of the Act is as follows. Section 18B(1) abrogates the privilege against self-incrimination. Section 18(2) restores some protection to a witness from direct use of the witness's answers. It does not, however, prevent or provide any protection against derivative use of the answers obtained under compulsion.

5. Parliament has, by enacting these sections, made a similar judgment as was made when enacting s 541 of the Companies (NSW) Code, which was considered in Hamilton v Oades [1989] HCA 21; 166 CLR 486. Mason CJ said, at 496:

   "Of course the section gives no protection to the witness against the use in criminal proceedings of derivative evidence, that is, evidence which is obtained from other sources in consequence of answers given by the witness in his examination... by enacting s 541 without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out his own mouth - the principal matter to which the privilege is directed."

6. Although there are circumstances, which need not presently be envisaged, where the consequence of the Commission's powers might be to affect the conduct of a criminal trial and whether it can proceed, this does not provide a reasonable excuse to an examinee who has not yet been charged for refusing to answer a relevant question put by the Commissioner on behalf of the Commission on the ground that it might tend to incriminate him.

7. In Australian Crime Commission v OK [2010] FCAFC 61; 268 ALR 281, the Court was considering an application to restrain the conduct of the Australian Crime Commission (the ACC) rather than a stay of a criminal prosecution. By majority (Emmett and Jacobsen JJ), the Court concluded that the ACC Act permitted an examination to continue on a subject matter directly related to a pending criminal charge so long as the protective prohibitions contemplated by s 25A(3) and s 25A(9) were put in place. Section 25A relevantly provided:

   "Persons present at examination

   ...

   (3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

   ...

   (9) An examiner may direct that:

   (a) any evidence given before the examiner; or

   (b) the contents of any document, or a description of any thing, produced to the examiner; or

   (c) any information that might enable a person who has given evidence before the examiner to be identified; or

   (d) the fact that any person has given or may be about to give evidence at an examination;

   must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence."

8. In CB's Case, CB and MP were charged with conspiracy to manufacture drugs and MP was also charged with conspiracy to import drugs. Some months after he was charged, CB was examined before the ACC. A transcript of the examination was taken but it was not provided to the DPP. Both CB and MP sought a permanent stay of the charges. The judge at first instance granted a stay in respect of CB but refused one in respect of MP. The Court of Criminal Appeal quashed the stay. It followed the majority in Australian Crime Commission v OK and considered that since appropriate directions as to confidentiality had been made in relation to the examination of CB:

   "he was effectively immunised from any direct or derivative use of the contents of his examination in his pending trial." (at [110])

9. The Court of Criminal Appeal said further:

   "Provided the knowledge of the proceedings in the Commission are adequately protected an accused person's entitlement to a fair trial in accordance with the adversarial process will be ensured. The situation is no different whether at the time of the Commission hearing a charge has not been laid or the criminal process has commenced. The right to a fair trial will only be compromised if information relevant to a person's defence in any form, including any derivative information, is available to the prosecution."

10. It does not, in my view, follow from the fact that one of the officers who executed the search warrant was at the time both an officer of the Commission and an officer of the NSW Police that there is a risk that, notwithstanding the directions made by the Commission, the plaintiff's answers on examination will be disseminated to the NSW Police. There is no evidence that any of the persons present at the plaintiff's examination have dual roles. Nor is there any evidence that the directions in their present form are inadequate to prevent information being disseminated to NSW Police.

11. Furthermore there is no express provision in the Act which authorises the Commission to make an irrevocable direction. Indeed there is some indication to the contrary since the existence of such a power would appear to be at odds with the Commission's statutory function of investigating relevant criminal activity that has been referred to it: s 6(1)(a).

12. If the plaintiff is eventually charged with an offence, it may be that he will have grounds to apply to a stay of proceedings on the ground that he was disadvantaged in his defence because he was required to give evidence under compulsion in the Commission or because his evidence was not in fact kept confidential from the prosecution, as occurred in R v Seller; R v McCarthy [2012] NSWSC 934. These possibilities do not, in my view, provide this Court with a basis on which to find that the plaintiff was entitled to refuse to answer the questions to which he objected in the Commission.

Orders

1. I make the following orders:

   (1)The decision of the Commission made on 15 August 2012 that the plaintiff is not entitled to refuse to answer the two questions put to him to which he objected is affirmed.

   (2)The summons is otherwise dismissed.

   (3)Unless an application for a different order for costs is made within seven days of the date of this order, order the plaintiff to pay the Commission's costs.

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