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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Smith v The Queen [2007] WASCA 163
Case
[2007] WASCA 163
Decision Date
CaseChat Overview and Summary
The case of Smith v The Queen involved the appellant, Mr Smith, who was convicted for breaches of the Australian Securities and Investments Commission Act 2001 (Cth). The central issue was whether Mr Smith and his co-offenders were properly joined in the indictment and if their offences arose from substantially the same or closely related acts or omissions. Additionally, the case examined the abrogation of the privilege against self-incrimination under section 68(1) of the Australian Securities and Investments Commission Act and the interpretation of sections 68(2) and 68(3) concerning the admissibility of statements made under examination.
The court was tasked with determining the proper construction of section 68(2) of the Act, specifically whether a claim under subsection (a) must be made in good faith and the meaning of "might tend to incriminate" and "might in fact tend to incriminate" within subsection (b). Furthermore, it considered the timing of the determination under subsection (b) and the construction of section 68(3), including whether a statement made under examination is admissible against the person in a criminal proceeding and if it can be used where the falsity of the statement is not an element of the offences being tried. The court also deliberated on whether the statement could be used in cases where not all offences require falsity of statement as an element and whether the court retains discretion to order separate trials under section 133(3) of the Criminal Procedure Act 2004 (WA).
Upon review, the court found that Mr Smith and his co-offenders were properly joined in the indictment as their offences arose substantially out of the same or closely related acts or omissions. The court concluded that the privilege against self-incrimination was properly abrogated under section 68(1) of the Act. It interpreted section 68(2)(a) to not require a claim to be made in good faith, and it determined that "might tend to incriminate" and "might in fact tend to incriminate" refer to a reasonable apprehension of self-incrimination, with the determination under subsection (b) made at the time the statement is given. Regarding section 68(3), the court held that a statement made under examination is admissible in a criminal proceeding unless its falsity is not an element of the offence being tried, in which case the court retains discretion to order separate trials to guard against prejudice.
The court ordered that the conviction of Mr Smith be quashed and remitted the matter to the Magistrates Court for retrial, ensuring that any prejudice could be adequately guarded against by appropriate directions.