Smith v The Queen

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SMITH -v- THE QUEEN [2007] WASCA 163

CORAM: PULLIN JA
BUSS JA
MILLER JA

HEARD: 17 JULY 2007

DELIVERED : 1 AUGUST 2007

PUBLISHED : 2 AUGUST 2007

FILE NO/S: CACR 72 of 2007

BETWEEN: BRIAN MILLWOOD SMITH
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CACR 75 of 2007

BETWEEN :STUART ADRIAN CORP
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :FENBURY DCJ
File No  :IND 1421 of 2004

Catchwords:

Criminal law and procedure - Practice and procedure - Information indictment or presentment - Joinder of offenders - Whether offences alleged to arise substantially out of the same or closely related acts or omissions - Whether parties properly joined - Severance - Alleged breaches of Australian Securities and Investments Commission Act 2001 (Cth) - Alleged false or misleading answers to questions

Privilege against self-incrimination - Abrogation of privilege by s 68(1) of the Australian Securities and Investments Commission Act - Construction of s 68(2) - Whether an oral statement giving information might tend or might in fact tend to incriminate a person - Whether a claim under s 68(2)(a) must be made in good faith - Meaning of "might tend to incriminate" and "might in fact tend to incriminate" in s 68(2)(b) - Date at which a court is to determine whether statement might in fact tend to incriminate the person within s 68(2)(b) - Construction of s 68(3) - Whether statement made by a person under examination is admissible in evidence against the person in a criminal proceeding - Whether statement can be used where falsity of statement not an element of offences being tried - Whether statement can be used only where falsity of statement is an element of each of the offences being tried - Whether statement can be used where offences being tried include offences in which falsity of statement is not an element, and if so, whether court retains discretion under s 133(3) of Criminal Procedure Act 2004 (WA) to order separate trials - Whether prejudice can be guarded against by a direction

Legislation:

Australian Securities and Investments Commission Act 1989 (Cth), s 68
Australian Securities and Investments Commission Act 2001 (Cth), s 1(2), s 5(1), s 12A, s 13(1), s 19, s 28, s 29, s 30, s 31, s 32, s 33, s 49, s 64, s 65, s 67(1)(a), s 68(1), s 68(2), s 68(3), s 76, s 77, s 78, s 79(1), s 79(3)
Canada Evidence Act 1985, s 5
Canadian Charter of Rights and Freedoms, s 11, s 13
Corporations Act 2001 (Cth), s 1308(2), s 1311(1)
Corporations Law, s 19, s 232(2), s 335, s 1311(1), s 1317FA
Corporations Legislation (Evidence) Amendment Act 1992 (Cth)
Crimes Act 1914 (Cth), s 5
Criminal Appeals Act 2004 (WA), s 26(1), s 26(3)(b), s 26(7), s 27
Criminal Procedure Act 2004 (WA), s 85(1), s 95(8)(a), s 133(3), s 133(4), s 133(5) Sch 1 (cl 2(2), cl 2(3), cl 7(3), cl 9)
Foreign Evidence Act 1994 (Cth), s 24
Mutual Assistance In Criminal Matters Act 1987 (Cth)
Royal Commissions Act 1923 (NSW), s 17

Result:

Appeal allowed in part
Leave to appeal refused on ground 1
Leave to appeal granted on ground 2

Category: A

Representation:

CACR 72 of 2007

Counsel:

Appellant: Mr S A Shirrefs SC & Mr G W Massey
Respondent: Mr S D Hall SC & Mr E W L Greaves

Solicitors:

Appellant: Holborn Lenhoff Massey
Respondent: Commonwealth Director of Public Prosecutions

CACR 75 of 2007

Counsel:

Appellant: Mr J L Glissan QC & Mr J S Whyte
Respondent: Mr S D Hall SC & Mr E W L Greaves

Solicitors:

Appellant: Haydn Robinson
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

A v Boulton (2004) 136 FCR 420
Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412
Beck & Smith v The Queen [1984] WAR 127
Blunt v Park Lane Hotel Ltd [1942] 2 KB 253
Brebner v Perry [1961] SASR 177
C v National Crime Authority (1987) 78 ALR 338
Carter v The Queen (1997) 19 WAR 8
Chew v The Queen (1991) 173 CLR 626
Coco v The Queen (1993) 179 CLR 427
De Jesus v The Queen (1986) 61 ALJR 1
Edwards v The Queen (1993) 178 CLR 193
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
F v National Crime Authority (1998) 83 FCR 99
Griffin v Pantzer (2004) 137 FCR 209
HKSAR v Lee Ming Tee [2001] 1 HKLRD 599
Hood (1997) 91 A Crim R 526
Jackson v Gamble [1983] 1 VR 552
Krakouer v The Queen (1998) 194 CLR 202
Ludlow v Metropolitan Police Commissioner [1921] AC 29
Martinez v The State of Western Australia [2007] WASCA 143
O'Keeffe v The State of Western Australia [2007] WASCA 99
Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328
R v Allen [2003] 1 SCR 223
R v Anderson [1994] 2 Qd R 409
R v Braysich (2006) 166 A Crim R 109
R v Clyne (1985) 2 NSWLR 740
R v Cohen, unreported; English Court of Appeal; 28 July 1992
R v Connell (No 1) (1992) 8 WAR 518
R v Corp (2006) 43 SR (WA) 266
R v Darby (1982) 148 CLR 668
R v Henry [2005] 3 SCR 609
R v Higgins (1994) 71 A Crim R 429
R v Hood (1997) 91 A Crim R 526
R v Kray [1970] QB 125
R v Kuldip (1988) 40 CCC (3d) 11
R v Kuldip [1990] 3 SCR 618
R v Lavender (2005) 222 CLR 67
R v Mannion [1986] 2 SCR 272
R v Noël [2002] 3 SCR 433
R v Smart [1983] 1 VR 265
Reid v Howard (1995) 184 CLR 1
Samuels v Western Australia (2005) 30 WAR 473
Sorby v The Commonwealth of Australia (1983) 152 CLR 281
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
The Queen v Corp (2006) 43 SR (WA) 266
Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478
Western Australia v Bowen (2006) 32 WAR 81
Zammit v The State of Western Australia [2007] WASCA 66

PULLIN JA: I have had the advantage of reading a draft of the reasons of Buss JA and Miller JA. Miller JA has set out in his reasons full details of the charges and Buss JA has set out the grounds of appeal.
For the reasons given by Miller JA, I agree that the charges are charges which are alleged to arise substantially out of the same, or closely related, acts or omissions, and that the charges were properly joined pursuant to cl 7(3)(b) of Sch 1 of the Criminal Procedure Act 2004 (WA). As a result, and like Buss JA, I do not consider it necessary to decide whether the charges were also properly joined under cl 7(3)(a) or (c). Leave to appeal in relation to ground 1.1 should therefore be refused.
Ground 1.2 assumes proper joinder of the charges in the indictment, but contends that the trial Judge erred in refusing to exercise the discretion conferred on him by s 133(4) of the Criminal Procedure Act to order that the appellants be tried separately. I agree with Buss JA for the second, third and fourth reasons he gives in [40] that the trial Judge was correct to refuse to order separate trials. The appellants relied on R v Darby (1982) 148 CLR 668 in support of this ground. Darby's case, if it applies to non‑conspiracy cases - as to which see Buss JA's reasons in Western Australia v Bowen (2006) 32 WAR 81 at [58] ‑ [59] - does not require a particular result in this case. See O'Keeffe v The State of Western Australia [2007] WASCA 99 at [31] ‑ [32]. I agree with both Buss JA and Miller JA that the trial Judge should not have dismissed consideration of Darby's case merely because it was handed down 22 years ago and was not from a Code State, but that error does not alter the outcome which is that leave to appeal in relation to ground 1.2 should be refused.
I now refer to ground 2. I agree with Buss JA's reasons for upholding ground 2 and add the following brief observations concerning the date at which the Court is to determine, for the purposes of par (b) of s 68(2), whether the statement might "in fact" tend to incriminate the person.
The respondent submitted here, as the respondent submitted before Williams DCJ in R v Corp (2006) 43 SR (WA) 266 and before the trial Judge, that it could not be said that an exculpatory statement might in fact tend to incriminate the person giving the answer. Williams DCJ in Corp adopted that submission, and the trial Judge adopted Williams DCJ's judgment when dealing with the admissibility of the allegedly false answers in the course of deciding the appellants' objection to the admission of the statements made at the examination in relation to some of the Corporations Act charges. The submission made by the

respondent, and adopted by Williams DCJ and the trial Judge, implicitly assumes that the determination about whether the statement might "in fact" tend to incriminate the person, is to be made at the time the answer was given. Like Buss JA, I consider that the determination must be made when the Court is required to determine whether the statement may be led in evidence in relation to a "proceeding". This determination will have to be made because of the provisions of s 76(1) and s 68(3) of the Australian Securities and Investments Commission Act 2001 (Cth) ("ASIC Act"). The procedure to be followed in order to obtain the determination is set out in s 79 of the ASIC Act.

In summary, leave to appeal should be refused on ground 1, but granted on ground 2. Ground 2 should be upheld and the trial Judge's decision set aside in part. In relation to Appeal CACR 72 of 2007 there should be an order that counts 45, 46 and 47 be tried separately from the other counts. In relation to Appeal CACR 75 of 2007 there should be an order that counts 38, 39, 40, 41, 42, 43, 44 and 48 be tried separately from counts 1 to 37.
BUSS JA: The material facts and background circumstances, including details of the offences charged in the indictment, are set out in the reasons of Miller JA.

Applications for leave to appeal

The appellant, Brian Millwood Smith, has applied for leave to appeal against the refusal of Fenbury DCJ to order that:
(a)Mr Smith's trial be held separately from that of the appellant, Stuart Adrian Corp; and
(b)Counts 45, 46 and 47 on the indictment be severed.
Similarly, Mr Corp has applied for leave to appeal against the learned Judge's refusal to order that:
(a)Mr Corp's trial be held separately from that of Mr Smith; and
(b)Counts 38, 39, 40, 41, 42, 43, 44 and 48 on the indictment be severed.
By s 26(1)(b) of the Criminal Appeals Act 2004 (WA), if an accused is charged in one indictment with two or more offences, he or she may appeal to this Court against a refusal by a Judge of a superior court to order that there be a separate trial of any of the charges. By s 26(3)(b), if two or more accused are charged on indictment with an offence, any

accused may appeal to this Court against a refusal by a Judge of a superior court to order that there be a separate trial of any of the accused. On an appeal under s 26 against, relevantly, a refusal to make an order, this Court may confirm the refusal, or set it aside and make any order that could have been made on the application for a separate trial: s 26(7).

Section 26 of the Criminal Appeals Act is contained in Pt 3 of that Act. By s 27(1), the leave of this Court is required for each ground of appeal in an appeal under Pt 3. After an appeal is commenced, this Court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding: s 27(2); Samuels v Western Australia (2005) 30 WAR 473.

The decisions and reasoning of the learned Judge

On 15 June 2007, the learned Judge determined, relevantly, three matters which had been argued before him the previous day. They were:
(a)an application by each of Mr Smith and Mr Corp for a separate trial of those charges on the indictment which related to him;
(b)an application by each of Mr Smith and Mr Corp for severance of those charges on the indictment which allege offences against s 64(1) or (2) of the Australian Securities and Investments Commission Act2001 ("ASIC Act") and a separate trial in respect of them (the relevant charges being counts 45, 46 and 47 in relation to Mr Smith, and counts 38, 39, 40, 41, 42, 43, 44 and 48 in relation to Mr Corp); and
(c)a dispute arising from the respondent's notice of intent under s 79(1) of the ASIC Act to each of Mr Smith and Mr Corp to the effect that the respondent will apply to have admitted in evidence at trial specified statements made by each of Mr Smith and Mr Corp during examinations conducted under s 19 of the ASIC Act, and the notice of objection under s 79(3) given by each of Mr Smith and Mr Corp.
The learned Judge dismissed the applications for separate trials. His Honour held that the joinder of Mr Smith and Mr Corp on a single indictment was permitted under each of pars (a), (b) and (c) of cl 7(3) of Sch 1 to the Criminal Procedure Act 2004 (WA). His Honour also held that the likelihood of either Mr Smith or Mr Corp being prejudiced by the joinder could adequately be guarded against by directions to the jury. See s 133(4) and (5) of that Act. His Honour said:
"Counsel for Mr Smith, Mr Shirrefs, stressed the fact of separate and discrete mechanisms and cited Darby, a decision of the High Court of Australia, 148 CLR 668. I note that decision was handed down 25 years ago and was not from a code state. I think the passing of the West Australia Criminal Procedure Act in 2004, as I have said, changed the law on joinder and facilitates more frequent joinder. There is some commonality in the conduct of the two accused picked up by the solo counts I am told and I accept Mr Hall's identification of that commonality; there are differences too but I think that joinder is good and in accordance with the Criminal Procedure Act schedule 1 clause 7(3) (a), (b) or (c) most clearly 7(b).
…
I turn to section 133 of the Criminal Procedure Act. …
Subsection (5) illustrates, I think, how much the law has changed by this legislation. It is submitted on behalf of the accused that there is prejudice to each accused because they are being tried together and large slabs of the evidence in the nine week trial will ultimately involve one of the accused for long periods whilst the other accused and his pricey legal team would have to sit in court patiently doing very little. It is put there is … therefore likely commercial prejudice to each accused.
I don't think that is a factor to be borne in mind although I must say if I was a consumer of legal services it would be close to my heart the expense of unutilised representation during periods of evidence relative to another accused is really not something I think I can bear in mind. It seemed to be suggested that each accused is prejudiced by being tried on a large number of counts with another accused on a large number of counts that there is potential for findings of guilt by association and I think that is always a concern when … a person is being tried with another person.
Counsel for the prosecution put that common purpose was alleged and in effect all the evidence was admissible against both accused and as explained in Braysich, (2006) WASCA 220 there is no real issue of prejudice at all in any event. Under the pressures of time in this matter to give this decision as I have indicated I don't propose further to analyse this issue. I doubt there would be significant prejudice, but assuming there is, assessments about prejudice are to some extent personal to judges and, of course, opinions vary.
I am in my thirteenth year in the job and I have a very strong impression that juries do listen to and follow judges' direction on the use or non use of evidence and on guarding against prejudice and focusing on evidence. In my experience, the rate of acquittal in trials where the risk of prejudice is a very real factor is high. In my view, the likelihood of either accused being prejudiced by the joinder discussed can be guarded against adequately by direction to the jury.
Consequently, there will not be separate trials."
The learned Judge dismissed the application to sever those charges on the indictment which allege offences against s 64(1) or (2) of the ASIC Act. His Honour said, relevantly:
"The counts sought to be severed relate to allegedly false or misleading evidence given at an inquiry by an investigating authority about two years after the seven or eight‑year period over which the alleged dishonest conduct picked up in the other counts in the indictment is alleged to have occurred. The essence of many of those other counts of alleged corporate misconduct is nondisclosure of interest in companies, hiding of the true facts and so on.
According to the prosecution, the answers given to the inquiry mentioned above were false denials of knowledge or involvement et cetera of relevant matters during the period covered by the indictment. The issues for determination by the jury about knowledge or nondisclosure and the like are similar if not the same for many of the counts of alleged corporate misconduct and the counts of false denials to the inquiry described. If proved there is established a pattern or ongoing course of conduct."
The learned Judge held that the statements specified in the respondent's notice of intent to Mr Smith under s 79(1) of the ASIC Act were admissible in evidence against him at trial. His Honour also held that the statements specified in the respondent's notice of intent to Mr Corp were admissible in evidence against him. In particular, his Honour decided that if the respondent sought to tender evidence of the statements in question, those statements would be admissible as Edwards lies. See Edwards v The Queen (1993) 178 CLR 193. His Honour said, relevantly:
"None of the answers amount to admissions against interest nor admissions of fact at all, save one or two minor exceptions. Almost invariably the answers are, 'No,' or, 'I don't recall,' or, 'Not that I recall,' or variations thereof or limited information followed by lack of recall, et cetera. None of the answers are incriminating on their face. The prosecution does not seek to rely on any of the answers as being true or to prove the truth of what they say. On the contrary, the prosecution says that the answers are untrue and exculpatory.
That is, they are false denials, false expressions of amnesia et cetera. The accused were compelled to answer the relevant questions under the legislation. They were compelled to answer. Before each answer each accused uttered the word 'privilege' apparently thereby claiming the privilege against self‑incrimination, this being the normal practice in such proceedings.
…
The submission that the evidence is inadmissible is based on the provisions of section 68 of the ASIC Act. Section 68(1) paraphrasing states that it is not a reasonable excuse for a person to refuse or fail to give information that the information might tend to incriminate the person. The section then goes on to provide that subsection (3) applies where the person claims privilege against self‑incrimination and the statement might in fact tend to incriminate him.
…
I think there is a difference between an answer that is false in information it contains and a false denial that conveys no information such as is alleged here. It seems to me that a bare false denial or a claim or a false claim of amnesia could not be said to be an incriminating answer or an answer that might tend to incriminate thus becoming … inadmissible by section 68(3) of the ASIC Act. The pressures of the moment prevent me from further reciting the argument helpfully pressed before me by counsel but in short, I accept the submissions of Mr Hall in respect of the effect of section 68 of the ASIC Act which appear at transcript page 771 at the top in the second paragraph being of 14 June 2007. Mr Shirrefs says fundamentally that Mr Hall misconstrues the subsection and I don't accept that he does.
I think that the counts arising from the allegedly false denials et cetera made by the accused to the ASIC examination are validly laid, they are based on admissible evidence and further that the evidence of those alleged false denials is admissible if sought as Edwards lies."

Between 7 ‑ 9 June 2006, Mr Corp had made an application for, relevantly, a separate trial and the severance of the charges brought under s 64 of the ASIC Act. Williams DCJ heard the application and dismissed it. See R v Corp (2006) 43 SR (WA) 266. Mr Corp did not apply for leave to appeal from his Honour's decision.
Senior counsel for Mr Corp nevertheless sought to make a (further) application to Fenbury DCJ for a separate trial and severance. He acknowledged that he was in a "somewhat difficult position" as a result of the previous application having been dismissed. In the alternative, senior counsel sought to be heard "in support" of Mr Smith's application. He contended that, since the hearing before Williams DCJ:
" … material changes have occurred … and while we may have been [in] possession of documentary material and of statements that have been obtained by the Crown it was certainly not the case that the opportunity had occurred to examine in detail and from a forensic perspective the evidence of any of the five witnesses which here arise."
In the event, Fenbury DCJ said, in his reasons for decision, that he would consider and rule on Mr Corp's applications:
"[Judge Williams] dealt with the issue by reciting paragraphs from the prosecutor's written submissions, commencing at paragraph 41 of his reasons for decision, and expressing acceptance of them. The refusal by a judge of this court to order separate trials on application by Mr Corp was not apparently challenged. I'm told circumstances have changed such that there is no impediment in Mr Corp joining with Mr Smith in this repeat application for the same sort of order, albeit by a different accused.
I'm not going to make further reference to this and am prepared to consider Mr Smith's [sic] application against the background I have just mentioned. I do so partly because since his Honour Judge Williams' decision in June 2006, the West Australian Court of Appeal has decided the case of Zammit on 23 March 2007, which is [2007] WASCA 66, a case with which I am personally familiar."
Later, in his reasons, his Honour acknowledged that his reference to being prepared "to consider Mr Smith's [sic] application" was an error, and he had intended to refer to Mr Corp's application. His Honour added that he was "visiting both" applications; that is, Mr Smith's application and Mr Corp's application. His Honour noted, in his reasons in relation to severance:
"Mr Corp joins in with Mr Smith in this application whilst acknowledging that Mr Corp unsuccessfully made a similar application … "
His Honour concluded:
"Counts 45, 46 and 47, indeed all of the ASC counts are properly joined in the indictment having regard to the provisions of the Criminal Procedure Act above mentioned."
Before this Court, the respondent did not assert that Mr Corp's application for leave to appeal was incompetent. Its position was summarised at par 8 of its written submissions:
"The appellant Corp has sought to re‑enliven an expired right of appeal against the decision of Judge Williams by making an identical application to Judge Fenbury. This is relevant to the question of whether leave to appeal should be granted. However, the Crown accepts that since the issues as regards Smith and Corp are the same the question of leave can be deferred until after hearing substantive submissions."

The grounds of appeal

Mr Smith's grounds of appeal are these:
"1.The learned trial judge erred in refusing to order that there be a separate trial of the appellant from the trial of his co‑accused Stuart Adrian Corp. In particular
1.1The learned trial judge erred in finding that the counts on the indictment against the appellant were each properly joined with the counts against Corp pursuant to each limb of cl 7(3) of schedule 1 of the Criminal Procedure Act 2004.
1.2The learned trial judge erred in finding that the risk of prejudice caused by the joint trial of the appellant and Corp could be adequately guarded against by judicial direction.
2.The learned trial judge erred in refusing to order that there be a separate trial of counts 45, 46 and 47 on the indictment, being charges brought against the appellant pursuant to section 64(1) of the Australian Securities and Investment [sic] Commission Act 2001. In particular
2.1The trial judge erred in failing to find that the statements made by the appellant in answer to questions asked of him at examinations conducted pursuant to s 19 of the ASIC Act were by operation of s 68(3) of the ASIC Act inadmissible in a criminal proceeding save for a proceeding in respect of the falsity of the statements."
Mr Corp's grounds of appeal are, relevantly, identical to Mr Smith's grounds:
"1.The learned trial judge erred in refusing to order that there be a separate trial of the Appellant from the trial of his co‑accused Brian Millwood Smith. In particular:
1.1The learned trial Judge erred in finding that the counts on the Indictment against the Appellant were each properly joined with the counts against Smith pursuant to each limb of cl 7(3) of schedule 1 of the Criminal Procedure Act 2004.
1.2The learned trial Judge erred in failing to find that there would be a positive injustice to the Appellant, and in finding that the risk of prejudice caused by the joint trial of the Appellant and Smith could be adequately guarded against by judicial direction.
2.The learned trial Judge erred in refusing to order that there be a separate trial of counts 38, 39, 40, 41, 42, 43, 44 and 48 on the Indictment, being charges brought against the Appellant pursuant to section 64(1)(b) of the Australian Securities and Investment [sic] Commission Act 2001. In particular:
2.1The trial Judge erred in failing to find that the subject counts are invalidly made and the statements made by the Appellant in answer to questions asked of him at examinations conducted pursuant to s 19 of the ASIC Act were by operation of s 68(3) of the ASIC Act inadmissible in a criminal proceeding save for a proceeding in respect of the falsity of the statements."
I note that ground 2, in each case, relies solely on s 68(3) of the ASIC Act. The appellants do not contend that cl 7(3) of Sch 1 to the Criminal Procedure Act was not satisfied in relation to the joinder of the alleged offences against s 64(1) or (2) of the ASIC Act with the other offences charged in the indictment.
I also note that the learned Judge's ruling in relation to the admissibility in evidence of the statements specified in the respondent's notices of intent under s 79(1) of the ASIC Act was a decision which cannot be challenged in an appeal to this Court under Pt 3 of the Criminal Appeals Act before the charges against Mr Smith and Mr Corp have been heard and determined. See, however, in relation to the referrals of questions of law to this Court, s 98(2)(d) of the Criminal Procedure Act read with s 46 of the Criminal Appeals Act.
It is, however, necessary, in the present case, in the course of:
(a)construing s 68 of the ASIC Act;
(b)applying the provisions of s 68, properly construed; and
(c)determining whether the discretion under s 133(3) of the Criminal Procedure Act should be exercised to order a separate trial in respect of the charges brought against Mr Smith and Mr Corp under s 64 of the ASIC Act,
to decide the circumstances in which, and purposes for which, statements made by a person under examination are admissible in evidence against the person in a criminal proceeding.

Ground 1: refusal to order separate trials

Section 85(1) of the Criminal Procedure Act provides that Sch 1 to the Act has effect in relation to indictments and charges in them.
A prosecution notice or indictment must relate to one accused only, and must contain one charge only, unless cl 7 of Sch 1 or any written law permits otherwise. See cl 2(2) and (3) of Sch 1.
By cl 7(3) of Sch 1:
"A prosecution notice or indictment may charge one or more persons with 2 or more offences if the offences -
(a)form or are a part of a series of offences of the same or a similar character;
(b)are alleged to arise substantially out of the same or closely related acts or omissions; or
(c)are alleged to arise from a series of acts or omissions done or omitted to be done in the prosecution of a single purpose,
and may do so without alleging a connection between the offences."
Clause 9(1) of Sch 1 provides that if one prosecution notice or indictment contains two or more charges, the charges must be tried together unless a court orders otherwise under the Act. By cl 9(2), if one charge charges two or more accused, they must be tried together unless a court orders otherwise under the Act.
The learned Judge decided that each of pars (a), (b) and (c) of cl 7(3) of Sch 1 permitted joinder of the charges against Mr Smith with the charges against Mr Corp in a single indictment.
In Zammit v The State of Western Australia [2007] WASCA 66, Steytler P (with whom Wheeler and Pullin JJA agreed) reviewed the legislative history of par (b) of cl 7(3), and then observed, at [39]:
"Considered against this background, it seems to me that the expression 'arise substantially out of … the same or closely related acts or omissions' is intended to have a relatively wide reach. So to read the expression is consistent with the cases suggesting that such provisions are not to give [sic] an unduly restrictive meaning, especially when regard is had to the broad discretion given to the Court by s 133 of the Act or equivalent provisions: see De Jesus at 9; Kray at 131; Ludlow at 39 - 40 and Barnes at [12]; but cf Cranston at 164 - 165 and Anderson at 412 - 413."
Paragraph (b) of cl 7(3), in the context of the joinder of the charges against Mr Smith with the charges against Mr Corp, requires that each of the offences charged be alleged "to arise substantially out of the same or closely related acts or omissions".
The respondent asserts, in relation to par (b) of cl 7(3), that the acts or omissions out of which the offences charged against Mr Smith arise are substantially the same as the acts or omissions out of which the offences charged against Mr Corp arise, in that the acts or omissions in question are related in time, place, the nature of the offences, the identity of the victims and the circumstances in which the offending occurred. The offences alleged against each of Mr Smith and Mr Corp relate to the holding, non‑disclosure and use of undisclosed shares in Welcome Stranger Mining Ltd ("WSM") and Hallmark Gold NL ("HLM"). The offences are alleged to involve:
(a)deceit as to who owned or controlled the shares;
(b)motivation, being the ability dishonestly to use the undisclosed shares controlled by each of Mr Smith and Mr Corp for the benefit of both of them;
(c)the same public companies (namely, WSM and HLM) of which Mr Smith and Mr Corp were directors;
(d)the same period of time and, in several cases, resolutions passed at the same meetings of the members of WSM and HLM; and
(e)provisions of laws regulating corporations and their shares.
It was submitted on behalf of Mr Smith and Mr Corp that the relationship between the acts or omissions which the respondent relies upon in relation to Mr Smith, and the acts or omissions which it relies upon in relation to Mr Corp, is "too remote". I do not accept that submission. Questions of fact and degree are involved in evaluating whether the acts or omissions relied upon in relation to Mr Smith, and the acts or omissions relied upon in relation to Mr Corp, may be described as "closely related", within par (b) of cl 7(3). I am satisfied, on the material recounted in the reasons of Miller JA (in particular, on the facts and circumstances summarised at [32] above), that it is proper to describe the acts or omissions in question as "closely related". The learned Judge was correct in deciding that joinder of the charges against Mr Smith with the charges against Mr Corp in a single indictment was permissible under par (b) of cl 7(3). In the circumstances, it is unnecessary to consider whether the joinder was also permissible under par (a) or par (c) of cl 7(3). Ground 1.1 is without merit.
I turn now to consider whether the learned Judge erred, as alleged in ground 1.2, in refusing to order separate trials for each of Mr Smith and Mr Corp.
Section 133(4) of the Criminal Procedure Act provides:
"If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried."
By s 133(5):
"In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires."
In Western Australia v Bowen (2006) 32 WAR 81, I examined, at 93 ‑ 99 [45] ‑ [67], the legislative history of s 133 and the proper construction of s 133(4) and (5). I said, at 99 [67]:
"In my opinion, if a Court is satisfied, for the purposes of s 133(4), that an accused is likely to be prejudiced by a joint trial, the Court, in deciding whether or not to exercise its discretionary power under s 133(4) to order separate trials, may take into account whether or not the likelihood of such prejudice can be guarded against by a direction to the jury. The phrases 'In deciding whether to make an order under subsection … (4)' and 'it is open', in s 133(5), are significant. They indicate that whether or not the Court's discretionary power under s 133(4), to order separate trials, should be exercised, is not to be determined solely by a decision, under s 133(5)(a), as to the efficacy of a direction in guarding against the likelihood of prejudice. Section 133(5) emphasises that the Court may refuse to order separate trials on the ground that the likelihood of prejudice to the accused can be guarded against by a direction, notwithstanding the existence of any of the matters referred to in pars (b) and (c) of that subsection. Otherwise, the provisions of s 133(4) and (5) do not specify, emphasise or restrict the considerations which the Court may take into account in determining whether or not to exercise its discretionary power under s 133(4). In my opinion, if a Court is satisfied, for the purposes of s 133(4), that an accused is likely to be prejudiced by a joint trial, then, subject to s 133(5), the considerations which the Court may take into account in deciding whether or not to order separate trials are those which were relevant prior to the enactment of s 133. The overriding question is whether separate trials are required to ensure that both or all of the accused receive a fair trial. The determination of that question involves a consideration of the interests of the accused and also the public interest."
Compare, however, the approach to s 133(4) and (5) of Roberts‑Smith JA, at 84 ‑ 85 [2] ‑ [8], and Pullin JA, at 90 ‑ 91 [28] ‑ [32].
In Zammit, Steytler P said, at [59] ‑ [60]:
"For policy reasons, the courts have long adopted a general rule that matters which can be joined without prejudice to the accused ought generally to be joined: R v Bellman [1989] AC 836 at 850; Connelly v Director of Public Prosecutions [1964] AC 1254; R v Bargenquast (1981) 5 A Crim R 126; Collins at 637; R v Harbach (1973) 6 SASR 427; Pinkstone at [57]; Ah Poh Wai v The Queen (1995) 15 WAR 404 at 431; Grakalic at [13]; R v Demirok [1976] VR 244. A number of factors justify this prima facie rule. It promotes consistency in decision-making and facilitates a single and final inquiry into matters which arise out of or essentially involve common issues of fact or law: Collins at 637; Webb and Hay v The Queen (1994) 181 CLR 41 at 89; Demirok at 254. It also promotes the due and expedient administration of criminal justice: Collins at 637; Demirok at 254. This encompasses a saving in court time and public expense and greater convenience for witnesses: Demirok at 254; Kray at 131.
The cases to which I have earlier referred make it plain that the fact that the joinder will result in evidence that would otherwise be inadmissible against one of the accused being heard by the jury is not, of itself, necessarily a sufficient reason for ordering separate trials (see also R v Sims [1946] KB 531 at 536). That is now made plain by s 133(5) of the Act which, as will be apparent, provides that, in deciding whether to make an order under s 133(4) or s 133(5), it is open to a superior court to decide that any likelihood of prejudice can be guarded against by a direction to the jury even if the evidence on one of the charges is inadmissible on another or the evidence against one of the accused is not admissible against another. However, the existence of either circumstance inevitably raises a question whether separate trials should be ordered: Conley at 231 per King CJ."
Later, his Honour said, at [65] ‑ [67]:
"There is now a good deal of authority to support the proposition that, at least in the ordinary case, a properly instructed jury is capable of distinguishing between evidence that is admissible, and therefore usable, against one offender but not admissible, and therefore unable to be taken into account, in respect of another: see, for example, Ludlow at 40 - 41; Beck at 135; Leaman (1987) 28 A Crim R 104 at 108; R v Connell (No 1) (1992) 8 WAR 518 at 530 - 531. However, there will undoubtedly be cases in which the prejudice is so great that it cannot confidently be concluded that it will be overcome: Rintel at 179, 182; Harbach at 435; Leaman at 112 - 113.
Finally, as regards this discussion of some of the considerations that are relevant to the exercise of a discretion of the kind afforded by s 133, it should be kept in mind, as Hunt J pointed out in Middis, that a decision made prior to a trial to refuse an application for separate trials may be reviewed during the course of the trial itself: see, in this State, s 133(1) and s 133(2) of the Act. Hunt J said that additional circumstances may then become apparent and that what might have been thought to be only a remote possibility may become real. In that event the judge is always able to discharge the jury in relation to the accused who is prejudiced and to proceed against the other accused or, for that matter, to discharge the jury generally and to start again with wholly separate trials. Hunt J also observed that it should be kept in mind that, in a joint trial, in addition to the specific directions to a jury as regards the admissibility of evidence and the use to which it might be put, the jury will be directed separately in the summing up in relation to the evidence admissible against each accused.
In this case, there is a clear distinction between the evidence that is admissible against the appellant and that which is admissible against his co‑offenders."
In the present case, it was submitted, on behalf of Mr Smith and Mr Corp, that the learned Judge, in deciding whether to exercise his discretion under s 133(4) of the Criminal Procedure Act, failed to take into account (adequately or at all) several factors that militated in favour of separate trials. It was argued that:
(a)his Honour failed to take into account the fact that the majority of the evidence admissible against one appellant was "significantly different from the evidence admissible against" the other: R v Darby (1982) 148 CLR 668 at 678;
(b)his Honour erroneously dismissed Darby as a relevant authority on the basis that it was "handed down 25 years ago and was not from a code state";
(c)his Honour failed to accord adequate weight to the real risk that a jury, if satisfied that one appellant was engaged in the alleged acts and omissions, would reason impermissibly that the other must also have been engaged in the same or similar acts and omissions; and
(d)his Honour failed to accord adequate weight to the oppression and prejudice to each appellant of being required to participate in a nine‑week trial, during a significant part of which the evidence against one appellant will have no bearing on the case against the other.
In summary, it was submitted on behalf of Mr Smith and Mr Corp that his Honour erred in the exercise of the discretionary power conferred by s 133(4), and, the proper application of the principles applicable to s 133(4) and (5) required the making of an order for separate trials.

The learned Judge should not have dismissed Darby on the basis he did. In Bowen, I considered Darby and whether various observations in the joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ in that case apply only in relation to a charge of conspiracy between two persons (or, perhaps, conspiracy generally) and not in relation to substantive offences. I said, at 97 ‑ 98 [58] ‑ [59]:
"I should mention R v Darby (1982) 148 CLR 668. In Darby the High Court held that the conviction of a conspirator, whether tried jointly with an alleged co-conspirator or separately, may stand, notwithstanding that the alleged co-conspirator is acquitted, unless, in all of the circumstances, the conviction is inconsistent with the alleged co-conspirator's acquittal. The joint judgment of Gibbs CJ, Aickin, Wilson and Brennan JJ refers, at 677, to the conceptual difficulties which attend the task of a jury determining the guilt of both A and B on a joint trial for conspiring together (and with no-one else). Their Honours said, at 677:
'It is true that greater conceptual difficulties attend the task of a jury determining the guilt of both A and B on a joint trial for conspiring together (and with no one else) than in the case of separate trials. A can only be convicted if the jury is satisfied beyond reasonable doubt on evidence admissible against him, inter alia, that A and B conspired together. In essaying their duty in the case of B, the same jury which was satisfied of A's guilt in conspiring with B may on evidence admissible against B fail to be satisfied beyond reasonable doubt that B did conspire with A. The result is then that in the one trial the jury is saying at the same time that A is guilty of conspiring with B but B is not guilty of conspiring with A. In reality, of course, the apparent phenomenon is readily explained in terms of the obligation of the jury to consider separately the guilt of the two accused on the basis only of the evidence admissible against each.'
Nevertheless, there remains an incongruity in the direction of a trial judge which on the one hand instructs the jury that they must consider separately the guilt of each accused, taking into account only the evidence admissible against each and on the other tells them that they must either convict them both or acquit them both. But it may be worse than that. Such a direction might well result in injustice to one accused. In a case where the evidence against A is overwhelming, a jury which is directed that they must either convict or acquit both may find it practically impossible to sustain and act on a reasonable doubt on the evidence admissible against B.'
Their Honours then observed, at 678:
'In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen ((1979) 44 CCC (2d) 481) requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. …'
There has been some disagreement among the Courts of the States as to whether those observations in Darby apply only in relation to a charge of conspiracy between two persons (or, perhaps, conspiracy generally), and not in relation to substantive offences. In this State, Victoria and South Australia, it appears to be established that the observations in Darby were not intended to modify the principles governing joint trials in relation to substantive offences (including the principle that, ordinarily, where accused are jointly charged, there should be a joint trial). See, for example, Collie at 309 - 310, 321 - 322; Torney (1983) 8 A Crim R 437 at 449; R v Connell (No 1) (1992) 8 WAR 518 at 529; Pinkstone at [58] ‑ [73]; R v Iaria and Panozzo [2004] VSC 110 at [27]. In New South Wales, the observations in Darby appear to have been applied more broadly; in particular, they have not been confined to charges of conspiracy. See, for example, R v Guldur (1986) 8 NSWLR 12 at 16 - 17; Farrell & Cotton (1990) 48 A Crim R 311 at 312 - 313. Darby was, of course, decided before Webb, and none of the judgments in Webb refer to Darby. This, and the context in which the observations in the joint judgment in Darby were made, suggest that those observations apply only in relation to a charge of conspiracy between two persons (or, perhaps, conspiracy generally), and not in relation to substantive offences. In my opinion, the line of authority in this State, Victoria and South Australia in relation to this issue is, with respect, correct."
The learned Judge was correct in refusing to order separate trials. My reasons are as follows. First, for the reasons I gave in Bowen, at 97 ‑ 98 [58] ‑ [59], in the present case the observations in Darby are not in point. Secondly, an appropriate direction by his Honour to the jury will be sufficient to neutralise any prejudice to one appellant arising from evidence which is admissible only against the other. Although the evidence which the respondent will adduce at trial will be extensive and complex, the charges do not appear to involve a complicated mixture of admissible and inadmissible evidence, as between each of the appellants, which a jury could not reasonably be expected to analyse in detail. It is reasonable to expect that the jury, with the benefit of an express and careful direction by his Honour, will not take into account any prejudicial evidence against one appellant which is inadmissible against the other. Thirdly, the fact that one appellant will not be actively involved in the trial for significant periods during which evidence will be led which is relevant only to the other, does not constitute a sufficient basis for ordering separate trials, at least on the facts of the present case. See R v Braysich (2006) 166 A Crim R 109; R v Connell (No 1) (1992) 8 WAR 518. Fourthly, there are no special or other features of the present case which require Mr Smith and Mr Corp to be tried separately. Ground 1.2 is without merit.
Ground 1 fails.

Ground 2: refusal to order severance of the charges brought under s 64 of the ASIC Act and a separate trial in respect of them

Section 64(1) of the ASIC Act provides that a person must not, in purported compliance with a requirement made under Pt 3 or in the course of an examination of the person, give information, or make a statement, that is false or misleading in a material particular. By s 64(2), a person must not, at a hearing, give evidence that is false or misleading in a material particular.
As I have mentioned, neither Mr Smith nor Mr Corp contended that the learned Judge had erred in determining that cl 7(3) of Sch 1 to the Criminal Procedure Act permitted the offences alleged against s 64(1) or (2) of the ASIC Act to be joined in a single indictment with the other alleged offences.
Ground 2 of each application for leave to appeal was confined, in essence, to an allegation that the learned Judge erred in refusing to order severance, and that the error arose as a result of his Honour's failure properly to construe and apply s 68 of the ASIC Act.
The learned Judge dealt with s 68 of the ASIC Act in ruling on the dispute arising from the respondent's notices of intent under s 79(1). His Honour did not, however, refer to s 68 in dismissing the applications for severance of those charges on the indictment which allege offences against s 64(1) or (2) and a separate trial in respect of them. The issue of severance was, however, referred to in that part of Mr Smith's written submissions to his Honour which set out Mr Smith's argument in relation to s 68. Senior counsel for Mr Smith, in his oral submissions to his Honour, stated, in substance, that he relied upon s 68 in support of Mr Smith's application for severance.

Ground 2: common law privilege against self‑incrimination

At common law, the privilege against self‑incrimination entitles a natural person to refuse to answer any question and to refuse to produce any document if the answer or the document would expose, or would have a tendency to expose, him or her, either directly or indirectly, to the risk of criminal conviction. See Blunt v Park Lane Hotel Ltd [1942] 2 KB 253 at 257; Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 420 ‑ 421; Reid v Howard (1995) 184 CLR 1 at 6 ‑ 7.
As Allsop J (with whom Ryan and Heerey JJ agreed) noted in Griffin v Pantzer (2004) 137 FCR 209, at 227 [38]:
"The privilege is often expressed, and sometimes authoritatively so, in circumstances where the answer or production would tend to expose the person to incrimination. Generally where that is done it is to express the privilege widely and inclusively of circumstances where answer or disclosure would expose the person to incrimination: see for example Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 647; Lamb v Munster (1882) LR 10 QBD 110 at 111; Redfern v Redfern [1891] P 139 at 147 and Blunt v Park Lane Hotel [1942] 2 KB 253 at 257." [original emphasis]
The privilege against self‑incrimination is related to the privileges against exposure to a civil penalty, forfeiture and ecclesiastical censure. See Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 337; The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553 ‑ 554 [13].
The privilege against self‑incrimination is a fundamental principle of the common law, and not merely a rule of evidence. It extends beyond curial and quasi‑judicial proceedings. See Sorby v The Commonwealth of Australia (1983) 152 CLR 281 at 309; Pyneboard at 340 ‑ 341.
The privilege against self‑incrimination emerged in the seventeenth century as a result of dissatisfaction with the proceedings of the Council of Star Chamber and the Court of High Commission. The historical development of the privilege is summarised by McHugh J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 543. Its modern rationale was explained by Mason CJ and Toohey J in Environment Protection Authority in the course of deciding that the privilege does not apply to corporations. Their Honours said, at 498 ‑ 499:
"In one important sense, the modern rationale for the privilege against self-incrimination is substantially the same as the historical justification - protection of the individual from being confronted by the 'cruel trilemma' of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment). Naturally, methods of punishment are now different: modern-day sanctions involve fines and/or imprisonment, rather than excommunication or physical punishment. Further, the philosophy behind the privilege has become more refined - the privilege is now seen to be one of many internationally recognized human rights. As Murphy J commented in Rochfort v Trade Practices Commission [(1982) 153 CLR 134, at p 150]:
'The privilege against self-incrimination is a human right, based on the desire to protect personal freedom and human dignity.'
This was echoed by the Supreme Court of Canada in Amway [[1989] 1 SCR, at p 40; (1989) 56 DLR (4th), at p 323], and by the minority in Braswell who stated that the privilege [(1988) 487 US, at p 119]: 'is an explicit right of a natural person, protecting the realm of human thought and expression.'
The right not to be compelled to testify against oneself or to confess guilt is embodied in Art. 14(3)(g) of the International Covenant on Civil and Political Rights. The language of that Covenant makes it clear that the purpose of its provisions is to protect individual human beings. As this Court has recognized, international law, while having no force as such in Australian municipal law, nevertheless provides an important influence on the development of Australian common law, particularly in relation to human rights [Mabo v Queensland [No 2] (1992) 175 CLR 1, at p 42].
Wigmore [McNaughton rev 1961, pp 310‑317] identifies twelve reasons put forward in justification of the privilege [See also the similar summary by Goldberg J of the policy reasons underlying the application of the privilege pursuant to the Fifth Amendment in the United States: Murphy v Waterfront Commission (1964), 378 US 52, at p 55]. Of those reasons, we need only refer to the last two, namely:
'11.The privilege prevents torture and other inhumane treatment of a human being.
...
12.The privilege contributes to a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load.'"
Also see Sorby, where Gibbs CJ said, at 294:
"It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt."
In Canada and the United States of America, the privilege against self‑incrimination has a constitutional basis. See, in relation to Canada, s 11(c) and s 13 of the Canadian Charter of Rights and Freedoms 1982 and, in relation to the United States, the Fifth Amendment and the Fourteenth Amendment, s 1. Also see Environment Protection Authority at 490 ‑ 496, 513; Accident Insurance Mutual at 421. In Australia, however, the privilege may be abrogated or modified by statute (Reid at 12; Sorby at 298, 308; Re Gordon (1988) 18 FCR 366 at 373), and this has occurred with increasing frequency in enactments of the Commonwealth Parliament. Parliament's intention to abrogate the privilege must, however, be clearly manifested by unmistakeable and unambiguous language. See Coco v The Queen (1993) 179 CLR 427 at 437; The Daniels Corporation at 554 ‑ 555 [16].

Ground 2: ASIC's objectives and functions

The objectives of the Australian Securities and Investments Commission ("ASIC") include maintaining, facilitating and improving the performance of the Australian financial system and the entities within that system; promoting the confident and informed participation of investors and consumers within the financial system; and taking action to enforce and give effect to the laws that confer functions and powers on it. See s 1(2) of the ASIC Act. ASIC's functions include monitoring and promoting market integrity and consumer protection in relation to the Australian financial and payments systems. See s 12A(2) and (3) of the ASIC Act. Where ASIC has reason to suspect that there may have been committed:
(a)a contravention of the corporations legislation (other than the excluded provisions); or
(b)a contravention of a law of the Commonwealth or of a State or Territory in this jurisdiction, being a contravention that:
(i)concerns the management or affairs of a body corporate or managed investment scheme; or
(ii)involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to financial products,
it may make such investigation as it thinks expedient for the due administration of the corporations legislation (other than the excluded provisions). See s 13(1) of the ASIC Act.
ASIC has numerous coercive information‑gathering powers, including the power:
(a)to require a person to attend an examination to answer questions on oath or affirmation and to give all reasonable assistance in connection with an investigation (s 19 of the ASIC Act);
(b)to inspect books (s 29 of the ASIC Act);
(c)to require the production of books, records or information (ss 30 ‑ 33 of the ASIC Act); and
(d)to require a person to give all reasonable assistance in connection with a prosecution - which may involve answering questions, explaining documents and diligently searching for and producing documents (s 49 of the ASIC Act).

Ground 2: the general rule relating to the evidentiary use of statements made at an examination in proceedings against the person examined

Section 76(1) of the ASIC Act provides that a statement that a person makes at an examination of the person is admissible in evidence against him or her in a proceeding unless an exception specified in par (a), (b), (c) or (d) of s 76(1) applies. The exception in par (a) reads:
"because of subsection 68(3), the statement is not admissible in evidence against the person in the proceeding;"
The exceptions in pars (b), (c) and (d) are not relevant, in the present case.
By s 76(2), s 76(1) applies in relation to a proceeding against a person "even if it is heard together with a proceeding against another person".

Ground 2: s 68 of the ASIC Act

Section 68(1), (2) and (3) of the ASIC Act provides:
"(1)For the purposes of this Part, of Division 3 of Part 10, and of Division 2 of Part 11, it is not a reasonable excuse for a person to refuse or fail:
(a)to give information;
(b)to sign a record; or
(c)to produce a book;
in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty.
(2)Subsection (3) applies where:
(a)before:
(i)making an oral statement giving information;
(ii)signing a record;
pursuant to a requirement made under this Part, Division 3 of Part 10 or Division 2 of Part 11, or under a corresponding law of another jurisdiction, a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and
(b)the statement, or signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable.
(3)The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in:
(a)a criminal proceeding; or
(b)a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c)in the case of the making of a statement - the falsity of the statement; or
(d)in the case of the signing of a record - the falsity of any statement contained in the record."
Section 68(1) expresses, with clarity, Parliament's intention that the common law privilege against self‑incrimination has been abrogated for the purposes of, relevantly, investigations and information‑gathering by ASIC under Pt 3 of the ASIC Act.
Before 14 May 1992, s 68(3) of the precursor to the ASIC Act (that is, the Australian Securities and Investments Commission Act 1989 (Cth) ("the 1989 Act")) compensated for the abrogation of the privilege by conferring "direct use" and "derivative use" immunities. The effect of the "direct use" immunity was that information provided by a person examined by ASIC (and the fact of that person signing a record of examination) was not admissible against that person in any subsequent criminal proceeding or proceeding for the imposition of a penalty, except a proceeding in respect of the falsity of the information provided. The effect of the "derivative use" immunity was that any information, document or other thing derived or obtained as a direct or indirect consequence of the person examined providing the original information (or signing a record of examination) was not admissible against that person in any subsequent criminal proceeding or proceeding for the imposition of a penalty, except a proceeding in respect of the falsity of the information provided.
On 14 May 1992, being the date of commencement of the Corporations Legislation (Evidence) Amendment Act 1992, s 68(2) and (3) of the 1989 Act were amended, in effect:
(a)to repeal the "derivative use" immunity;
(b)to repeal the "direct use" immunity in relation to documents produced by a natural person under compulsion; and
(c)to provide that the "direct use" immunity was not available to corporations.
Section 68(1),(2) and (3) of the 1989 Act, as amended, was identical in substance to s 68(1), (2) and (3) of the ASIC Act

In A v Boulton (2004) 136 FCR 420, Kenny J (with whom Beaumont and Dowsett JJ agreed) cited, at 428, the following passage from the judgment in HKSAR v Lee Ming Tee [2001] 1 HKLRD 599, in relation to the effect of a statutory abrogation of the privilege against self‑incrimination and its replacement with a compensatory provision:
"Where, as in the present case, the words of the statute clearly abrogate the privilege and substitute for it a limited direct use prohibition, the privilege is abrogated in its entirety and the scope of the substituted protections, if any, becomes a matter of statutory construction."
Accordingly, s 68(1) of the ASIC Act having abrogated the privilege against self‑incrimination, the scope of the "direct use" immunity conferred by s 68(3) is to be determined upon the proper construction of s 68 (in particular, s 68(2) and (3)) in the context of the ASIC Act as a whole.

Ground 2: the proper construction of s 68(2) of the ASIC Act

My examination of s 68(2) of the ASIC Act will focus on the provisions relating to a person making an oral statement giving information, and the provisions relating to whether the statement might tend (or might in fact tend) to incriminate the person. Those provisions are not materially different from the provisions relating to signing a record or the provisions relating to whether a statement, or signing a record, might tend (or might in fact tend) to make the person who makes the statement, or signs the record, liable to a penalty.
By s 68(2), the "direct use" immunity in s 68(3) applies where pars (a) and (b) of s 68(2) are satisfied. The "direct use" immunity does not apply if either par (a) or par (b) is not satisfied.
Paragraph (a) of s 68(2) requires that any claim by a person who is being examined that making "an oral statement giving information … might tend to incriminate the person" must be asserted before the statement is made.
The words "statement", "give" and "information" are defined elsewhere in the ASIC Act:
(a)By s 5(1), "give" has, in relation to a document, a meaning affected by s 86 and, in relation to information, a meaning affected by s 6. (It is unnecessary, in the present case, to refer to s 6 or s 86.)
(b)By s 5(1), "statement", in relation to an examination, includes a question asked, an answer given, and any other comment or remark made, at the examination.
(c)By s 6, a reference in the ASIC Act to giving information includes a reference to explaining or stating a matter; identifying a person, matter or thing; disclosing information; or answering a question.
Section 68(2) does not permit a person who is being examined to make the claim referred to in par (a) on a "blanket basis". It is necessary for the claim to be made separately in relation to each proposed statement which the person asserts might tend to incriminate him or her. A practice has arisen under which the person being examined utters the word "privilege" before commencing to answer a question or otherwise make a statement giving information. The requirement in par (a) is analogous to the position at common law, in relation to the privilege against self‑incrimination, whereby objection must be taken to a specific question (Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478 at 490; C v National Crime Authority (1987) 78 ALR 338 at 343) and, if objection is not taken, the answer is deemed to have been given voluntarily and the privilege to have been waived (R v Clyne (1985) 2 NSWLR 740 at 746 ‑ 747).
At common law, the court before whom the privilege against self‑incrimination is claimed must be satisfied that the privilege has been taken in good faith. If the court is not satisfied on that point, the witness will be compelled to answer. See Brebner v Perry [1961] SASR 177 at 182; Jackson v Gamble [1983] 1 VR 552 at 556. Section 68(2) does not, however, specify that a claim made under par (a) must be made in good faith. The respondent submitted, in effect, that a requirement of good faith should be implied. I reject that submission for these reasons. First, par (b) of s 68(2) provides, in effect, that the compensatory "direct use" immunity in s 68(3) will not apply unless the statement might "in fact" tend to incriminate the person being examined. Parliament has expressly prescribed an objective test, which I analyse at [68] ‑ [71] below, to prevent an improper claim to, or an abuse of, the immunity which s 68(3) confers. Secondly, the person being examined is compelled to make the statement whether or not pars (a) and (b) of s 68(2) are satisfied. By contrast, at common law, the successful invocation of the privilege against self‑incrimination entitles the person claiming the privilege to remain silent. Thirdly, s 68(3) contemplates that the person being examined may have made statements which are deliberately false. This is apparent from the exception to the general prohibition in s 68(3), whereby, relevantly, a statement made by the person is not admissible in evidence against him or her in a criminal proceeding, except a proceeding in respect of the falsity of the statement. Fourthly, if the person being examined gives deliberately false evidence, he or she may be charged with an offence against s 64(1) or (2). Also see s 65(1)(a), which provides that a person must not engage in conduct that results in the obstruction or hindering of a person in the exercise of a power under Pt 3. The absence of a requirement that a claim made under par (a) of s 68(2) must be made in good faith does not immunise from prosecution a person who gives deliberately false information.
In my opinion, the words "in fact", in par (b) of s 68(2), require that there be reasonable ground to fear that the statement might have the stated effect. ASIC and the inspectors carrying out the examination do not have a role in determining whether reasonable ground exists. The scheme of the legislation, in particular s 68(2) and (3) read with ss 76, 77, 78 and 79 of the ASIC Act, indicates that whether reasonable ground exists is to be determined by the Court hearing the proceeding in which the statement is sought to be admitted in evidence against the person who was examined. What it will be necessary to establish in order to satisfy the Court that the statement might "in fact" tend to incriminate the person, within s 68(2)(b), will depend on all the circumstances of the case. Compare Jackson at 556.
The word "might", in the context of "might tend to incriminate", within s 68(2)(a), and "might in fact tend to incriminate", within s 68(2)(b), connotes that, at least, a real possibility exists, based on objective facts and circumstances, that:
(a)the statement which the person is to make, for the purposes of par (a); and
(b)the statement which the person has in fact made, for the purposes of par (b),
may tend to incriminate the person. Compare F v National Crime Authority (1998) 83 FCR 99 at 107 ‑ 111.
Although s 68(3) applies where the person being examined claims that the statement "might tend to incriminate" and the statement "might in fact tend to incriminate", in my opinion, the words "might" and "tend" set a minimum threshold. Section 68(3) will also apply, for example, where it is claimed that the statement "would" expose the person to incrimination and where the statement "does" in fact incriminate. The words "might" and "tend" ensure that the compensatory "direct use" immunity, which is conferred by s 68(3) "in exchange for" the abrogation of the privilege against self‑incrimination, will have a broad and useful operation. Compare Griffin at 227 [38], 256 [187].
An issue arises as to the date as at which the Court is to determine, for the purposes of par (b) of s 68(2), whether the statement might "in fact" tend to incriminate the person. Is the determination to be made as at the date on which the statement is made, and by reference solely to the facts and circumstances then existing? Alternatively, is the determination to be made as at the date on which the Court determines whether the statement is admissible in evidence against the person, and by reference to the facts and circumstances then existing? The respondent submitted, in effect, that a statement which is, on its face, exculpatory (even if deliberately false) is not a statement which might in fact tend to incriminate and that the determination whether the statement might in fact tend to incriminate the person should be made as at the date on which the statement is made, and by reference solely to the facts and circumstances then existing. In my opinion, the better view is that the determination is to be made as at the date on which the Court determines admissibility, and by reference to the facts and circumstances existing at that time, including, significantly, by reference to the allegations made against the person in the relevant proceeding. It is the better view in that:
(a)the "limited use" immunity relates solely to the admissibility of the statement in evidence against the person in a proceeding of the kind described in s 68(3); and
(b)the Court in which that proceeding is pending determines whether the statement is admissible,
and, in those circumstances, it is more likely the Parliament intended that any propensity, in fact, of the statement to incriminate the person, in the context of the pending proceeding, should be determined by reference to the facts and circumstances existing at that time.

Ground 2: the proper construction of s 68(3) of the ASIC Act

My examination of s 68(3) of the ASIC Act will focus on the provisions relating to the circumstances in which a statement made by a person under examination is admissible or not admissible in evidence against the person in a criminal proceeding.
As I have mentioned, s 76(1) provides that a statement that a person makes at an examination of the person is admissible in evidence against him or her in a proceeding unless, relevantly, because of s 68(3), the statement is not admissible in evidence against the person in the proceeding.
If pars (a) and (b) of s 68(2) are satisfied, then, by s 68(3), the statement is not admissible in evidence against the person in a criminal proceeding. That general prohibition in s 68(3) is, however, subject to an exception, which provides, in effect, that the statement is admissible in evidence against the person in a proceeding in respect of the falsity of the statement.
Two features of the general prohibition in s 68(3) may be noted. First, the prohibition does not relate to the "use" of the statement for any purpose, whether adverse to the person or not. It is confined to the "admissibility" of the statement in evidence against the person in proceedings of the kind described in s 68(3). Secondly, the effect of the prohibition is that the statement is not admissible in evidence "against the person", but the prohibition does not apply to the admissibility of the statement in evidence against another party. For example, if the person is the managing director of a corporation and the statement also constitutes an admission in relation to acts or omissions on behalf of the corporation, the statement may be admissible in evidence against the corporation in proceedings generally.
Some issues of importance in relation to s 68(3) include:
(a)Does the general prohibition preclude the statement being received in evidence against the person, in a criminal proceeding, where the falsity of the statement is not an element of any offences being tried, for the purpose of establishing that the statement was a lie which was told out of a consciousness of guilt in relation to the offences being tried (Edwards at 209 ‑ 211) or for the purpose of proving that the statement was a lie and thereby attacking the person's credit?
(b)Does the exception to the general prohibition make the statement admissible in evidence against the person, in a criminal proceeding, only where the falsity of the statement is an element of each of the offences being tried (for example, offences against s 64(1) or (2) of the ASIC Act)? Alternatively, does the exception to the general prohibition make the statement admissible in evidence against the person, in a criminal proceeding, where the offences being tried include an offence or offences in which the falsity of the statement is not an element?
(c)If the exception to the general prohibition makes the statement admissible in evidence against the person, in a criminal proceeding, where the offences being tried include an offence or offences in which the falsity of the statement is not an element, on the basis that the trial Judge will direct the jury that the statement is evidence in the case of the alleged offence or offences in which the falsity of the statement is an element, but not in the case of the other alleged offence or offences, does the Court retain a discretion under s 133(3) of the Criminal Procedure Act to order separate trials on the ground that any likelihood of the person being prejudiced cannot be guarded against by the direction?
I will deal with each of these issues in turn.

Ground 2: s 68(3) of the ASIC Act: does the general prohibition preclude the statement being received in evidence against the person, in a criminal proceeding, where the falsity of the statement is not an element of any offences being tried, for the purpose of establishing that the statement was a lie which was told out of a consciousness of guilt in relation to the offences being tried or for the purpose of proving that the statement was a lie and thereby attacking the person's credit?

In Hood (1997) 91 A Crim R 526, the appellant gave evidence unwillingly and under objection at the Royal Commission into the New South Wales Police Service. By s 17 of the Royal Commissions Act 1923 (NSW):
"(1)A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate the witness, or on the ground of privilege or on any other ground.
(2)An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.
(3)Nothing in this section shall be deemed to render inadmissible:
(a)any answer, document or other thing in proceedings for an offence against this Act;
(b)any answer, document or other thing in any civil or criminal proceeding if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1);
(c)any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing."
After giving evidence to the Royal Commission, the appellant pleaded guilty to a charge that he unlawfully and intentionally accessed data stored in a police computer. At the sentencing proceedings, the appellant was cross‑examined about his evidence at the Commission and he admitted that it had been false. He was also cross‑examined as to whether he had attempted to mislead the Commission because he thought it was to his advantage. The sentencing Judge dismissed an objection to that question, and the appellant agreed that he had. On appeal to the Court of Criminal Appeal of New South Wales, the issue was whether the appellant's evidence at the Commission was admissible against him in the sentencing proceedings, either on its own, or as the basis of, or a springboard to, the question whether he had attempted to mislead the Commission because he thought it would be to his advantage. Other issues arose on the appeal, but they are not relevant for present purposes.
In Hood, Smart J considered the proper construction and application of s 17. His Honour reviewed, in connection with his construction of s 17, the decision of the Supreme Court of Canada in R v Kuldip [1990] 3 SCR 618, where the Court considered s 13 of the Canadian Charter of Rights and Freedoms and s 5 of the Canada Evidence Act 1985. Section 13 provides:
"A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence."
By s 5(1) and (2):
"(1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence."
In Kuldip, Lamer CJ, who wrote the reasons of the majority of the Supreme Court (Dickson CJ, Lamer CJ, Gonthier and McLachlin JJ; Wilson, La Forest, L'Heureux‑Dubé dissenting), held, at 633, that there was "a distinction between a cross‑examination made for the purpose of impeaching credibility and one made to 'incriminate' the accused, that is to establish guilt". Lamer CJ also said, at 634, that, "Using a prior inconsistent statement from a former proceeding during cross‑examination in order to impugn the credibility of an accused does not, in my view, incriminate that accused person". The majority therefore decided that s 13 did not prevent the Crown cross‑examining an accused at a retrial, on a prior inconsistent statement made by him at the original trial, for the purpose of attacking his credit.
In Hood, Smart J concluded, at 536 ‑ 537, in relation to s 17:
"(a)Where a statute abrogates the privilege against self‑incrimination and confers compensatory protection, the court must construe the ambit of that statutory protection. A technical or narrow approach should not be adopted having regard to the importance of that privilege;
(b)Where questions in cross-examination have the twofold purpose or effect of undermining the credibility of a witness and tending to incriminate that witness, those questions are not permissible. There is a rider to this principle where the offence in respect of which the witness is tending to be incriminated is trivial or technical and the dominant purpose and effect of the cross‑examination is to undermine the credibility of the witness;
(c)Questions in cross-examination as to prior inconsistent statements to a Royal Commission having the sole purpose and effect of undermining the credibility of a witness are admissible;
(d) Where it is hard to draw the line between cross-examination undermining credibility and that having a tendency to incriminate and there is a substantial risk that it may have the tendency to incriminate, such cross-examination is not permissible;
(e)The answer to the challenged question in cross‑examination had the tendency to incriminate the accused of a serious offence, namely of knowingly giving false testimony under s 21 of the Royal Commissions Act. It was thus inadmissible even though it also undermined the accused's credibility, assuming s 17 of that Act applied;
(f)However, s 17 did not apply as the challenged question or the substance of it was not asked at the Royal Commission. Thus, in respect of that question the privilege against self-incrimination had not been abrogated. The question was thus impermissible and covered by the privilege, objection having been taken, no warning having been given and the witness directed to answer the question."
The other members of the Court in Hood (Hunt CJ at CL and Ireland J) expressly reserved their opinions in relation to s 17. Hunt CJ at CL said, at 528:
" … the interesting (and complex) questions - possibly involving matters of policy - as to the interpretation of statutory provisions such as s 17 do not need to be determined in this appeal, and I would prefer to reserve my opinion in relation to them for a case in which it becomes necessary to determine them."
Ireland J said, at 538, that, in common with Hunt CJ at CL, he reserved questions of interpretation of statutory provisions such as s 17 to a case in which their determination was necessary.

It is unnecessary to resolve the question whether "purpose" should be given a broad or a narrow meaning and I need not decide whether the alleged offences in this case constitute a series of acts done in the prosecution of a single purpose, as I am firmly of the view that the first two limbs of cl 7(3) have been met and justify the joinder.

The discretion provided under s 133 of the Criminal Procedure Act 2004

Section 133(4) of the Act is in the following terms:
"(4)If a court is satisfied that an accused is likely to be prejudiced in the trial of a prosecution notice or indictment because it also charges one or more other accused, the court may order -
(a)that one or more of the accused be tried separately from the other or others; and
(b)the prosecutor to tell the court the order in which the accused will be tried."
Section 133(5) provides:
"(5)In deciding whether to make an order under subsection (3) or (4) in respect of an indictment to be tried by a jury, it is open to a superior court -
(a)to decide that any likelihood of the accused being prejudiced can be guarded against by a direction to the jury;
(b)to so decide irrespective of the nature of the offence or offences charged; and
(c)to so decide even if -
(i)the evidence on one of the charges is inadmissible on another; or
(ii)the evidence against one of the accused is not admissible against another,
as the case requires."
The provisions of s 133 were analysed by Steytler P in Zammit v The State of Western Australia at [59] ‑ [60] in the following terms:
"59 For policy reasons, the courts have long adopted a general rule that matters which can be joined without prejudice to the accused ought generally to be joined: R v Bellman [1989] AC 836 at 850; Connelly v Director of Public Prosecutions [1964] AC 1254; R v Bargenquast (1981) 5 A Crim R 126; Collins at 637; R v Harbach (1973) 6 SASR 427; Pinkstone at [57]; Ah Poh Wai v The Queen (1995) 15 WAR 404 at 431; Grakalic at [13]; R v Demirok [1976] VR 244. A number of factors justify this prima facie rule. It promotes consistency in decision‑making and facilitates a single and final inquiry into matters which arise out of or essentially involve common issues of fact or law: Collins at 637; Webb and Hay v The Queen (1994) 181 CLR 41 at 89; Demirok at 254. It also promotes the due and expedient administration of criminal justice: Collins at 637; Demirok at 254. This encompasses a saving in court time and public expense and greater convenience for witnesses: Demirok at 254; Kray at 131.
60The cases to which I have earlier referred make it plain that the fact that the joinder will result in evidence that would otherwise be inadmissible against one of the accused being heard by the jury is not, of itself, necessarily a sufficient reason for ordering separate trials (see also R v Sims [1946] KB 531 at 536). That is now made plain by s 133(5) of the Act which, as will be apparent, provides that, in deciding whether to make an order under s 133(4) or s 133(5), it is open to a superior court to decide that any likelihood of prejudice can be guarded against by a direction to the jury even if the evidence on one of the charges is inadmissible on another or the evidence against one of the accused is not admissible against another. However, the existence of either circumstance inevitably raises a question whether separate trials should be ordered: Conley at 231 per King CJ."
At [65] Steytler P said:
"65 There is now a good deal of authority to support the proposition that, at least in the ordinary case, a properly instructed jury is capable of distinguishing between evidence that is admissible, and therefore usable, against one offender but not admissible, and therefore unable to be taken into account, in respect of another: see, for example, Ludlow at 40 ‑ 41; Beck at 135; Leaman (1987) 28 A Crim R 104 at 108; R v Connell (No 1) (1992) 8 WAR 518 at 530 - 531. However, there will undoubtedly be cases in which the prejudice is so great that it cannot confidently be concluded that it will be overcome: Rintel at 179, 182; Harbach at 435; Leaman at 112 ‑ 113."
In the present case, counsel for Smith contends that the learned trial Judge failed to have sufficient regard to a variety of factors when ruling that there was insufficient prejudice to Smith to cause him to exercise his discretion pursuant to s 133(4) of the Act. In particular, it is contended that the learned trial Judge failed to have regard to the fact that the majority of the evidence admissible against Corp was significantly different from the evidence admissible against Smith. There was also criticism of the learned trial Judge's discounting of the decision of R v Darby (1982) 148 CLR 668 on the basis that it was "handed down 25 years ago and was not from a Code State".
The criticism of the learned trial Judge's dismissal of R v Darby is justified. The case is certainly authority for the proposition that at common law separate trials might well be ordered in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other: see Gibbs CJ, Aickin, Wilson and Brennan JJ at 678. However, the learned trial Judge was right to point out that the provisions of s 133(5)(c) do now provide that even if the evidence against one of the accused is not admissible against another, a trial Judge may, in the exercise of his discretion, decide that any likelihood of prejudice to an accused person may be guarded against by a direction to the jury. The warning contained in the passage in R v Darby to which I have referred is still generally relevant, but needs to be read in the context of the provisions of s 133(5).
This was made clear in O'Keeffe v The State of Western Australia [2007] WASCA 99, where Pullin JA (with whom Miller and Le Miere AJA agreed) at [31] ‑ [32] made the following observations about Darby:
"31 ... Nothing said in Darby took into account legislation of the kind which is in force here; however, there is no doubt that the prejudice which might be suffered where there are two accused and where the evidence against one is inadmissible against the other, has to be considered because s 133 requires consideration of the prejudice. Further, s 133(5) expressly requires the court to consider whether the likelihood of prejudice can be guarded against by a direction to the jury.
32The observations made by the court in Darby do not require a particular result. The facts of each case have to be considered separately."
In the present case, it is unnecessary to determine the extent to which the evidence proposed to be led by the Crown against one appellant is admissible against the other. As I have already said, on the face of it, the evidence of what Corp did in the creation of a corporate structure to "warehouse" shares is evidence against him. The evidence of what Smith did in the same respect is evidence against him. That evidence does not, prima facie, seem to me to be evidence against the other. However, it is not appropriate for this Court to rule on that question, which remains an issue for the learned trial Judge. As I have said several times, the Crown case is that there is evidence that each of the appellants acted in a particular way to "warehouse" shares and, having set up the corporate structure to enable that "warehousing" of shares to be done, the appellants then voted with the use of the "warehoused" shares to ensure that resolutions favourable to them both would be either passed, or lost.
I agree with the learned trial Judge that the likelihood of prejudice to either appellant caused by joinder can be adequately guarded against by an appropriate direction to the jury as to how evidence relating to each is to be used. I respectfully adopt what Steytler P said in Zammit v The State of Western Australia at [65] to the effect that a properly instructed jury is capable of distinguishing between evidence that is admissible and therefore usable against one offender, but not admissible and therefore unable to be taken into account in respect of another. Appropriate directions given in this case can secure that end.
Although complaint was made by counsel for Smith that there would be prejudice to each appellant by having to sit and listen to large sections of evidence relating to the other (a prejudice primarily caused by the financial consequences), there is authority that the requirement for each appellant to listen to lengthy evidence relating only to the other appellant does not form a basis for separate trials: see R v Connell (No 1) (1992) 8 WAR 518 per Seaman J at 522 and 530.
In my opinion, leave to appeal should be refused in relation to ground 1 and the appeal on this ground should be dismissed.

Ground 2

Ground 2 of the grounds of appeal seeks an order for severance. Smith seeks an order that counts 45, 46 and 47 on the indictment be severed and Corp seeks an order that counts 38, 39, 40, 41, 42, 43, 44 and 48 on the indictment be severed. Counts 35, 36 and 37 are not the subject of the notices of appeal.
The learned trial Judge decided the question of severance by reference to cl 7(3) of sch 1. He appears to have considered that the ASIC charges were properly joined under the three limbs of cl 7(3).
The argument for severance of the ASIC charges proceeded before this Court on a different basis. It was argued that the provisions of s 68(2) and (3) of the ASIC Act, when properly read, mean that the answers given by the appellants in the course of the ASIC inquiry under s 68 are such that they are inadmissible in a criminal proceeding, other than a proceeding in respect of the falsity of the statement made, such a proceeding being a proceeding solely for an offence against s 64 of the ASIC Act.
Section 64 of the ASIC Act makes it an offence for a person in the course of an examination to make a statement that is false or misleading in a material particular.
Section 68(1) of the ASIC Act abrogates the common law rule against self‑incrimination and provides that it is not a reasonable excuse for a person to refuse or fail to give information in accordance with a requirement made of the person that the information might tend to incriminate the person or make the person liable to a penalty.
Section 68(2) and s 68(3) are in the following terms:
"68(2) Subsection (3) applies where:
(a)before:
(i)making an oral statement giving information; or
(ii)signing a record;
pursuant to a requirement made under this Part, Division 3 of Part 10 or Division 2 of Part 11, a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and
(b)the statement, or signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable.
68(3) The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in:
(a)a criminal proceeding; or
(b)a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c)in the case of the making of a statement ‑ the falsity of the statement; or
(d)in the case of the signing of a record ‑ the falsity of any statement contained in the record."
The argument of the appellants is that the statements made by the appellants in response to questions put by ASIC investigators, whether lies or not, were statements which are admissible in evidence against the appellants only in a criminal proceeding in respect of the making of the falsity of the statement. It is argued that s 68(3) speaks of a "criminal proceeding" as the (my emphasis) criminal proceeding in respect of the making of the falsity of a statement and not otherwise. In other words, any charges arising out of alleged false statements made in an inquiry under s 68 could not be the subject of joinder in any other criminal proceeding.
The respondent contended that because the statements made by the appellants were exculpatory on their face (being denials or statements that they had no recollection), they were not statements that "might in fact tend to incriminate" within the meaning of s 68(2)(b) and therefore the prohibition contained in s 68(3) had no application.
I am of the view that to categorise the answers of the appellants in this way would effectively render the provisions of s 68(3) of the ASIC Act redundant. I accept the argument that a lie can incriminate. The test is whether the lie might in fact tend to incriminate the maker.
The learned trial Judge accepted in the course of ruling on the admissibility of the evidence of "lies" that exculpatory answers did not attract the protection contained within s 68(3). In the passage I have previously quoted, the learned trial Judge stated that a bare false denial or a false claim of amnesia could not be said to be an incriminating answer or an answer that might tend to incriminate. His Honour apparently concluded in addition to the conclusions by reference to cl 7(3) that the counts arising from the alleged false denials were "validly laid" (by which I assume his Honour meant "properly joined") and "based on admissible evidence". His Honour further ruled that the evidence of the alleged false denials was admissible if sought as Edwards lies (my emphasis). That is, the alleged false denials, if proven to be false, would be lies capable of constituting a consciousness of guilt: Edwards v The Queen (1993) 178 CLR 193 per Deane, Dawson and Gaudron JJ at 208 ‑ 209.
I accept the contention that "a criminal proceeding" within the meaning of s 68(3) means a criminal proceeding in respect of the alleged falsity of a statement and solely a criminal proceeding for that purpose. This view accords with Smart J's observation in R v Hood (1997) 91 A Crim R 526 at 536 that:
"Where a statute abrogates the privilege against self‑incrimination and confers compensatory protection, the court must construe the ambit of that statutory protection. A technical or narrow approach should not be adopted having regard to the importance of that privilege ..."
The construction of s 68(3) which I favour also accords with the principle of statutory construction that words of a penal provision should be strictly adhered to. Although it has been suggested that in modern times the "rule of strict interpretation" is a matter of "last resort" (see R v Lavender (2005) 222 CLR 67 per Kirby J at [93] and "Statutory Interpretation in Australia" (6th ed) D C Pearce and R S Geddes (Butterworths at [9.9])), there is still authority to the effect that the principle remains. Two examples will suffice. In Chew v The Queen (1991) 173 CLR 626, Mason CJ, Brennan, Gaudron and McHugh JJ at 632 said of the provisions of s 229(4) of the then Companies (Western Australia) Code:
"We are unable to discern any other indications of relevant statutory intention from the context. The historical and contextual relationship of s 229(4) with s 229(3) leads us to the conclusion that 'to' in s 229(4) should be read as 'in order to'. Had we not come to that conclusion, we would have considered that the provision was ambiguous in that respect. In that event, all other indicia having failed, the provision, being penal in character, should be interpreted in favour of the strict, that is the purposive, meaning in preference to the causative meaning [R v Adams (1935) 53 CLR 563 at pp 567 ‑ 568; Beckwith v The Queen (1976) 135 CLR 569 at p 576; Waugh v Kippen (1986) 160 CLR 156 at p 164]." (Citations added)
In Krakouer v The Queen (1998) 194 CLR 202 McHugh J at 223 (who was in dissent as to the outcome of the case, but whose observations on this issue were not doubted) said:
"A court should not disregard clear words and interpret a legislative provision so as to extend the scope of criminal liability even if it thinks that, by inadvertence, the legislature has failed to deal with a matter. That is so even if the court thinks that the legislature would probably have dealt with the matter if it had been drawn to the legislature's attention. Jordan CJ put the relevant principle succinctly in delivering the judgment of the Full Court of the New South Wales Supreme Court in Ex parte Fitzgerald; Re Gordon (39):
'If conduct of a particular kind stands outside the language of a penal section, the fact that a Court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.'
Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion, as it is in this case."
I am of the opinion that the "ASIC charges" should be severed from the indictment. That is, counts 38 to 48 on the indictment should be severed from counts 1 to 34.
If I am wrong in the way in which I have construed s 68(3) of the ASIC Act, a further question remains. It was raised at the hearing of this appeal. Assuming that counts 38 to 48 on the indictment are otherwise properly joined (and there has been no appeal to suggest that joinder under cl 7(3) of sch 1 would be irregular), the Court would, nevertheless, be required to consider the provisions of s 133 of the Act. Section 133(3) provides that if a Court is satisfied that an accused is likely to be prejudiced by reason of the indictment containing two or more charges, the Court may order that the accused be tried separately on one or more of them. Section 133(5) requires the Court in deciding whether or not to make such an order to consider whether any likelihood of the accused being prejudiced can be guarded against by a direction to the jury and to so decide even if evidence on one of the charges is inadmissible on another.
In the present case, assuming that counts 38 to 48 could be tried together with counts 1 to 34, questions will arise as to the admissibility of evidence in relation to counts 38 to 48 on the trial of counts 1 to 34. The respondent has said that it relies on "consciousness of guilt lies" of the appellants in the course of their answers to ASIC investigators as part of the prosecution case in relation to counts 1 to 34.
The Crown will thus seek to establish as part of the prosecution case on counts 1 to 34 that the appellants, when questioned about their involvement in the "warehousing" of shares, falsely denied any knowledge of the existence of the corporate structures which had been put in place. These lies (if proven) will be relied upon as evidence of consciousness of guilt on the part of the appellants within the meaning of Edwards v The Queen (supra) .
A subsidiary question will arise as to whether or not the alleged lies are capable of constituting consciousness of guilt on the part of the appellants (as to which see the discussion of the relevant principles in Martinez v The State of Western Australia [2007] WASCA 143 at [275] et seq). Assuming that the Crown is able to establish that the appellants deliberately lied and that those lies were capable of constituting lies told with a consciousness of guilt, it will be a jury question whether the lies were in fact told with a consciousness of guilt. A critical question will arise then as to whether those alleged lies are in fact admissible in evidence in relation to the Crown case on counts 1 to 34. This is a question which it is presently unnecessary to answer. Indeed, it would be inappropriate for the Court to answer the question, as the scope of the appeals to this Court under s 26 of the Criminal Appeals Act 2004 is limited to the question of joinder and severance.

If the evidence of alleged lies on the part of the appellants is limited to counts 38 to 48 and is inadmissible in relation to the Crown case on counts 1 to 34, I can see severe prejudice to the appellants which, in my view, would be incapable of being guarded against by a direction to the jury. That prejudice is obvious. Lies allegedly told in relation to one set of charges are likely to influence a consideration of the other charges. In my opinion, this will be so despite any direction from the learned trial Judge to contrary. In the event that the appellants give evidence, and are cross‑examined as to the alleged lies told in the course of ASIC investigations, it will heighten the problem. If they admit to lying, the trial Judge will have great difficulty in directing the jury that such answers in cross‑examination are relevant only to counts 38 to 48 on the indictment and not otherwise. No jury could be expected to compartmentalise the evidence in that way.
In my view, assuming all counts on the indictment to be properly joined, an order for severance is required under s 133(3) of the Act because no direction to the jury could guard against the prejudice which might otherwise be engendered to the appellants. However, having regard to the interpretation that I have put upon s 68(3) of the ASIC Act, this conclusion is strictly unnecessary.
I consider that leave to appeal should be granted to each appellant on ground 2 of the grounds of appeal and the appeal on that ground should be allowed.

Conclusion

In my opinion, leave to appeal should be refused in the case of each appellant in relation to ground 1 of the grounds of appeal and the appeal of the appellants on that ground should be dismissed. Leave to appeal should be granted to each appellant on ground 2 and the grounds of appeal of each of the appellants should be allowed in that counts 38 to 48 inclusive on the indictment should be severed from it and tried separately from counts 1 to 34 and counts 35, 36 and 37 if they remain on the indictment. The prosecution should, at the resumed hearing in the District Court, be ordered to tell the Court the order in which the various charges (counts) on the indictment will be tried: s 133(3)(b) of the Act.

[2007] WASCA 163

27 JULY 2007