WF1 v National Crime Authority

[1993] FCA 794

WF1 v. NATIONAL CRIME AUTHORITY
No. VG396 of 1993
FED No. 794
Number of pages - 3
Criminal Law
(1993) 44 FCR 533

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
SWEENEY, NORTHROP AND DRUMMOND JJ

CATCHWORDS

Criminal Law - investigatory bodies - Crimes Act (Vic) Subdivision (30A) of Part III has no application to investigations conducted in Victoria by National Crimes Authority.

Crimes Act (Vic) 1958 Subdivision (30A) of Part III, s464J(a)

National Crime Authority (State Provisions) Act 1984 s19

HEARING

MELBOURNE, 15 October 1993

#DATE 3:11:1993

Counsel for the Appellants: Mr P.C. Dane QC with

Mr O.P. Holdenson

Solicitor for the Appellants: Wilmoth Field and Warne

Counsel for the Respondent: Mr G.A.A. Nettle QC with

Mr A.L. Cavanough

Solicitors for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

SWEENEY, NORTHROP AND DRUMMOND JJ This is an appeal from a decision of Olney J who declined to make an order to review the decision of the respondent that the appellant, a witness at a hearing conducted by the respondent, was not justified in refusing to answer a question put to him by the respondent's presiding member.

1. The resolution of the question before the learned primary judge and of the question for this court depends upon the proper construction of two Victorian statutes, the National Crime Authority (State Provisions) Act 1984 ("the State NCA Act") and the Crimes Act 1958.

2. The relevant facts, which are not in dispute, are set out in his Honour's reasons. The appellant did not seek to justify his refusal to answer the question put to him on the ground that that might tend to incriminate him. He based his refusal on certain provisions of the Crimes Act 1958 (Vic). The appellant's case was that the provisions of Subdivision (30A) - "Custody and Investigation", of Part III the Crimes Act 1958, inserted by s. 5 the Crimes (Custody and Investigation) Act 1988 (Vic.), which impose restrictions on the questioning by certain persons in authority of persons suspected of having committed offences while they are in custody, are inconsistent with the relevant provisions of the State NCA Act (which includes s. 19, a provision that substantially mirrors s. 30 the National Crime Authority Act 1984 (Cwth)) and must be taken to have repealed or at least amended those provisions of the State NCA Act, including s. 19. If this were so, it would be necessary to determine whether by force of s. 109 the Constitution, Subdivision (30A) the Crimes Act 1958 was, to the extent of any such inconsistency with s. 30 the National Crime Authority Act 1984 (Cwth), invalid. His Honour held that there was no inconsistency between Subdivision (30A) the Crimes Act 1958 and the relevant provisions of the State NCA Act, essentially on the ground that the former dealt with the consensual questioning of persons suspected of offences while in custody, while the latter dealt with the compulsory interrogation of persons summonsed for questioning in relation to inquiries concerning matters referred by the relevant Victorian Minister to the National Crime Authority. The first mentioned Act did not therefore repeal or amend any of the provisions of the State NCA Act. It was unnecessary for his Honour to consider the constitutional issue.

3. The appellant also argued, both at first instance and here, that since the relevant Victorian Minister had referred the matter in connection with which the appellant was questioned to the National Crime Authority pursuant to s. 5(1) the State NCA Act, the Authority and its staff were thus "appointed by or under an Act" of the Victorian Parliament within the meaning of that term in the definition of "investigating official" in s. 464(2) the Crimes Act 1958; it was then said that the appellant was in custody within the meaning of that term as defined in s. 464(1) the Crimes Act 1958 when the question which he refused to answer was put to him and that the presiding member of the Authority was therefore bound by s. 464A(3) to inform the appellant, before questioning him, that he did not have to say anything. The learned primary judge also rejected this argument on the basis that, before a person could be an "investigating official" within the meaning of that term in s. 464(2) the Crimes Act 1958, he had to be appointed under a Victorian Act to an office, the functions of which included the prevention or investigation of offences, and that the reference of a matter to the National Crime Authority for investigation by the Victorian Minister pursuant to s. 5(1) the State NCA Act did not involve any such appointment of the National Crime Authority or any of its members to an office under that Victorian Act; at most it operated merely to empower the Authority and its members, who were all appointed under the National Crime Authority Act 1984 (Cwth), to investigate the matter referred.

4. After we reserved our decision, senior counsel for the respondent, with the consent of senior counsel for the appellant, drew our attention to s. 464J the Crimes Act 1958, a provision to which the learned primary judge was not referred. This section, so far as is relevant, provides:
   

"Nothing in ss. 464 to 464I affects -

(a) the right of a person suspected of having committed an offence to refuse to answer questions or to participate in investigations except where required to do so by or under an Act or a Commonwealth Act; or ..."

1. The operation of this provision is, in our opinion, clear. It has long been the rule at common law that a person cannot be compelled to answer any questions if he would thereby tend to incriminate himself. It is also well-established that, quite apart from this privilege against self-incrimination, a citizen has, at common law, an unqualified entitlement to refuse to answer questions put to him by persons in authority: Rice v Connolly (1966) 2 QB 414 at 419. It is also well settled at common law that (save after being placed under arrest) a citizen has an unqualified entitlement to refuse to accompany those in authority to any particular place: Rice v Connolly, ibid, and that persons in authority, including the police, have no general power to detain a person against his or her will for questioning. Waaka v The Police (1987) 1 NZLR 754 at 757. But legislatures have, over a long period, acted to cut down these common law rights to silence, to privilege against self-incrimination and to freedom from restraint. Section 19 the State NCA Act and s. 30 the National Crime Authority Act 1984 are but further examples of a Victorian Act and a Commonwealth Act which each restrict these common law entitlements of the citizen.

2. The rights declared by s. 464J the Crimes Act 1958 to be unaffected by the provisions of Subdivision (30A) of that Act are, firstly, the right of a person suspected of having committed an offence to refuse to answer any questions, but only to the extent that right remains unimpaired by an obligation to speak imposed by a Victorian statute or a Commonwealth statute, and, secondly, the right of a person suspected of having committed an offence to refuse to give up his freedom from restraint prior to being arrested, but only to the extent that right remains unimpaired by any obligation imposed by a Victorian Act or a Commonwealth Act.

3. By the same statute by which the Victorian Parliament enacted the provisions relied upon by the appellant to justify his refusal to answer questions put to him by the Authority, the Crimes (Custody and Investigation) Act 1988, that Parliament recognised the existence of statutory provisions, including s. 19 the State NCA Act and s. 30 the National Crime Authority Act 1984 and expressly declared that the rights conferred on citizens and the restrictions imposed on persons in authority by the 1988 statute had no application to powers of the kind conferred on the Authority and obligations imposed on persons summonsed by the Authority as witnesses by legislation such as the State NCA Act and the National Crime Authority Act of the Commonwealth.

4. It follows that the appellant's reliance on Subdivision (30A) of Part III the Crimes Act 1958 to justify his refusal to respond to questioning by the Authority is misconceived.

5. This is sufficient reason to dispose of the appeal. In dismissing the appeal on this ground, we should not, however, be taken to cast doubt on the correctness of any of the conclusions of the learned primary judge.