X v Callanan
[2016] QSC 42
•9 March 2016
SUPREME COURT OF QUEENSLAND
CITATION:
X v Callanan [2016] QSC 42
PARTIES:
X
(applicant)
v
JOHN DAVID CALLANAN (as Presiding Officer of the Crime and Corruption Commission)
(respondent)
FILE NO/S:
BS12844/15
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
9 March 2016
DELIVERED AT:
Brisbane
HEARING DATE:
8 March 2016
JUDGE:
Jackson J
ORDER:
The order of the court is that:
1. The application is dismissed.
2. The applicant pay the respondent’s costs of the application.
CATCHWORDS:
CONSTITUTIONAL LAW – JUDICIAL POWER – where the respondent required the applicant to answer a question in a hearing conducted under the Crime and Corruption Act 2001 (Qld) – where the applicant declined to answer the question on the ground that he had a reasonable excuse –where the applicant argued the reasonable excuse was that derivative use would be made against him of answers given – whether the institutional integrity of the Supreme Court is impaired by ss 190 and 97, which abrogate privilege against self-incrimination and permit derivative use of evidence given, such that the provisions infringe the Kable principle
Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7, cited
Construction, Forestry, Mining & Energy Union v Boral Resources (VIC) Pty Ltd (2015) 147 ALD 492; [2015] HCA 21, cited
Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43, cited
Duncan v Independent Commission Against Corruption (2015) 324 ALR 1; [2015] HCA 32, cited
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, cited
Hammond v The Commonwealth (1982) 152 CLR 188; [1982] HCA 42, cited
International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49, cited
Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46, cited
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, considered
Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46, cited
Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39, cited
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, cited
Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9, cited
R v Swaffield (1998) 192 CLR 159; [1998] HCA 1, cited
Sorby v The Commonwealth (1983) 152 CLR 281; [1983] HCA 10, cited
South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39, cited
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, citedCrime and Corruption Act 2001 (Qld) ss 190, 195, 197
COUNSEL:
A Boe and P Morreau for the applicant
M Copley QC for the respondent
SOLICITORS:
Nyman Gibson Miralis for the applicant
Official Solicitor for the Crime and Corruption Commission for the respondent
Jackson J: The applicant applies for leave to appeal and, if leave is granted, an order setting aside the respondent’s decision requiring him to answer a question put to him in a hearing before the respondent conducted under the Crime and Corruption Act 2001 (Qld) (“CC Act”). Alternatively, he applies for declaratory relief as to whether he is obliged to answer the question.
Events leading up to the decision
In 2009, Z was shot and killed at the Gold Coast.
On 11 October 2011, the respondent issued a notice under s 82 of the CC Act requiring the applicant to attend at a commission hearing to answer questions as to “your knowledge of the circumstances surrounding the murder of [Z] at [place redacted] on [date redacted] 2009”.
In other proceedings, the applicant unsuccessfully challenged the validity of the notice.
On 10 December 2015, the applicant attended before the respondent as the presiding officer in compliance with the notice.
At the hearing, orders were made by the respondent as follows:
(a) (under s 180(3) of the CC Act) prohibiting the publication of any answer given or document or thing produced at the hearing or anything about any such answer, document or thing; and any information that might enable the existence or identity of the applicant to be ascertained; to any officer of any prosecuting agency with carriage of, or involvement in, any prosecution of the applicant for any charges, whether arising from the investigation or any other investigation.
(b) (under s 197(5) of the CC Act) that all answers given by the applicant in the proceedings are to be taken to be answers given under objection on the grounds of privilege against self-incrimination.
The applicant was asked the following question: “Do you know the whereabouts of the firearm used in the shooting of [Z] at [place redacted] on the [date redacted] 2009?”
The applicant declined to answer the question on the ground that he had a reasonable excuse.
The factual basis for that claim was the applicant’s belief that the purpose of the question was to make derivative use of any answer against him because the whereabouts of the firearm is a thing that might be used to further the investigation into the murder.
The respondent required the applicant to answer the question. The applicant did not comply with the requirement on the ground that he had a reasonable excuse not to do so.
The respondent decided that there was not a reasonable excuse.
The respondent required the applicant to answer the question and advised the applicant that he may appeal that decision to the Supreme Court within the time allowed under s 195 of the CC Act.
The proceeding was then adjourned to a date to be fixed so that this application could be brought.
Appellate jurisdiction of the Supreme Court
Section 195 of the CC Act provides, in part:
“195 Appeals to Supreme Court
(1) A person may appeal against a decision of a presiding officer given under section 194(3)(b) if—
(a) the person applies for leave to appeal the decision within 7 court days after the person is given the presiding officer’s reasons for decision; and
(b) the Supreme Court grants leave to appeal.
(2) The Supreme Court may grant leave to appeal only if the court is satisfied—
(a) if the appeal relates to a document or thing—the document or thing has been given to the commission and placed in safe custody; and
(b) in all cases—the appeal has a significant prospect of success or there is some important question of law involved.
(3) An application for leave to appeal must state the grounds of the application.
(4) The Supreme Court must deal with an application for leave to appeal and the appeal expeditiously.
(5) On hearing the appeal, the Supreme Court may make an order—
(a) affirming the presiding officer’s decision; or
(b) setting aside the presiding officer’s decision…”
Accordingly, the applicant must obtain a grant of leave to appeal before this court may entertain the appeal. The applicant submitted that the proposed appeal involved an important question of law.[1]
[1]Crime and Corruption Act 2001 (Qld), s 195(2)(b).
Second, if leave to appeal is granted, the powers of this court on hearing the appeal are confined to affirming the presiding officer’s decision or setting aside the presiding officer’s decision.[2]
[2]Crime and Corruption Act 2001 (Qld), s 195(5).
The stated basis for the appeal is that the respondent’s decision (that the applicant did not have a reasonable excuse to answer the question) was made in error because ss 190 and 197 of the CC Act are invalid as infringing Ch III of the Australian Constitution by reason of the Kable principle. That principle is so named for its origin in Kable v Director of Public Prosecutions (NSW).[3]
[3](1996) 189 CLR 51.
Section 190 of the CC Act provides, in part, as follows:
“190 Refusal to answer question
(1) A witness at a commission hearing must answer a question put to the person at the hearing by the presiding officer, unless the person has a reasonable excuse.
Maximum penalty—200 penalty units or 5 years imprisonment.
(2) The person is not entitled—
(a) to remain silent; or
(b) to refuse to answer the question on a ground of privilege, other than legal professional privilege…”
Section 197 of the CC Act provides as follows:
“197 Restriction on use of privileged answers, documents, things or statements disclosed or produced under compulsion
(1) This section applies if—
(a) before an individual answers a question put to the individual by the commission or a commission officer or produces a document or thing or a written statement of information to the commission or a commission officer, the individual claims self-incrimination privilege in relation to the answer or production; and
(b) apart from this Act, the individual would not be required to answer the question or produce the document, thing or statement in a proceeding if the individual claimed self-incrimination privilege in relation to the answer or production; and
(c) the individual is required to answer the question or produce the document, thing or statement.
(2) The answer, document, thing or statement given or produced is not admissible in evidence against the individual in any civil, criminal or administrative proceeding.
(3) However, the answer, document, thing or statement is admissible in a civil, criminal or administrative proceeding—
(a) with the individual’s consent; or
(b) if the proceeding is about—
(i) the falsity or misleading nature of an answer, document, thing or statement mentioned in subsection (1) and given or produced by the individual; or
(ii) an offence against this Act; or
(iii) a contempt of a person conducting the hearing; or
(c) if the proceeding is a proceeding, other than a proceeding for the prosecution of an offence, under the Confiscation Act and the answer, document, thing or statement is admissible under section 265 of that Act.
(4) Also, the document is admissible in a civil proceeding about a right or liability conferred or imposed by the document.
(5) In a commission hearing, the presiding officer may order that all answers or a class of answer given by an individual or that all documents or things or a class of document or thing produced by an individual is to be regarded as having been given or produced on objection by the individual.
(6) If the presiding officer makes an order under subsection (5), the individual is taken to have objected to the giving of each answer, or to the producing of each document or thing, the subject of the order.”
It is necessary to say something about the operation of other provisions of the CC Act before considering the Kable principle.
The CC Act
One of the main purposes of the CC Act is to combat and reduce the incidents of “major crime”.[4] Major crime includes criminal activity involving an indictable offence punishable by a term of imprisonment not less than 14 years.[5] The Crime and Corruption Commission (“commission”) has investigative powers, not ordinarily available to the police service that will enable the commission to affectively investigate major crime.[6]
[4]Crime and Corruption Act 2001 (Qld), s 4(1)(a).
[5]Crime and Corruption Act 2001 (Qld), Sch 2 (definition of “major crime”).
[6]Crime and Corruption Act 2001 (Qld), s 5(2).
The commission’s “crime function” entails investigating major crime referred to it.[7] The ways by which the commission performs this function includes gathering evidence for the prosecution of persons for offences and liaising with, including providing information to, other law enforcement agencies and prosecuting authorities.[8]
[7]Crime and Corruption Act 2001 (Qld), s 25(a).
[8]Crime and Corruption Act 2001 (Qld), ss 26(a) and 26(b).
The Commission may authorise the holding of a hearing in relation to any matter relevant to the performance of its functions.[9] The chairperson may issue an attendance notice requiring a person to attend to, inter alia, give evidence or produce stated documents or things at the hearing.[10] A person served with an attendance notice must not, without reasonable excuse, fail to attend at the hearing.[11] A person attending at a commission hearing to give sworn evidence must not fail to take an oath when required by the presiding officer.[12]
[9]Crime and Corruption Act 2001 (Qld), s 176(1).
[10]Crime and Corruption Act 2001 (Qld), s 82(1).
[11]Crime and Corruption Act 2001 (Qld), s 82(5).
[12]Crime and Corruption Act 2001 (Qld), s 183.
The presiding officer at the hearing may prohibit the publication of an answer given to a question or anything about the answer.[13]
[13]Crime and Corruption Act 2001 (Qld), s 180(3).
The person must answer questions put to him or her and is not entitled to refuse to answer questions by claiming privilege against self-incrimination.[14] If a claim of self-incrimination is made, although the question must be answered, the answer given is not admissible in evidence against the person in any proceeding.[15] In some of the case law concerned with this subject matter, such a prohibition is described as a prohibition against “direct use”, as opposed to “indirect or derivative use”.[16]
[14]Crime and Corruption Act 2001 (Qld), ss 190 and 194(2), Sch 2 (definitions of “privilege” and “self-incrimination privilege”).
[15]Crime and Corruption Act 2001 (Qld), s 197(2); there are exceptions in ss 197(3) and 197(4).
[16]Sorby v The Commonwealth (1983) 152 CLR 281, 293-294.
It is an offence to publish an answer given at an investigative hearing without the commission’s written consent or contrary to an order made by the commission.[17] However, there is no offence if, inter alia, the hearing was a public one and no order prohibiting disclosure was made.[18] The commission may require a person to answer a question that is relevant to a criminal charge or proceeding already faced by the person.[19]
[17]Crime and Corruption Act 2001 (Qld), s 202(1).
[18]Crime and Corruption Act 2001 (Qld), s 202(2)(a) and s 202(2)(b); there are other exceptions provided for in ss 202(2)(c)-(e) and 202(3)(a)-(b).
[19]Crime and Corruption Act 2001 (Qld), s 331(4)(b); see Hammond v The Commonwealth (1982) 152 CLR 188.
The Kable Principle
When the High Court decided Kable in 1996, it might have been expected that the principle or prohibition for which it stands would be invoked rarely. The history of cases since has disappointed that expectation, although there are only a few cases in which a law has actually been held to be invalid because of the principle or principles for which Kable stands as authority.
The applicant relied on a pithy statement drawn from the reasons for judgment of Gummow J in Fardon v Attorney-General (Qld)[20] as follows:
“[T]he essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system.”[21]
[20](2004) 223 CLR 575.
[21](2004) 223 CLR 575, 617 [101].
From that notion or conceptual statement, the applicant’s argument proceeded to cases concerned with the accusatorial nature of a criminal trial. In particular the applicant relied on Construction, Forestry, Mining & Energy Union v Boral Resources (VIC) Pty Ltd[22] which recently reaffirmed that nature, being that under the common law the onus of proof is upon the prosecution to prove its case at trial and the prosecution cannot compel the accused to assist it to discharge that onus.[23]
[22](2015) 147 ALD 492.
[23]Construction, Forestry, Mining & Energy Union v Boral Resources (VIC) Pty Ltd (2015) 147 ALD 492, 499 [36].
The fundamental common law group of rights and privileges inherent in the accusatorial nature of a criminal trial informs the construction and proper interpretation of a statute that deals with or affects them as was seen, for example, in X7 v Australian Crime Commission.[24]
[24](2013) 248 CLR 92.
There were quite a number of other cases referred to by the applicant in its submissions. However, some important points must be kept in mind. Kable is not authority for the correct principles to be applied in construing or interpreting a statute.[25] Nor is it authority for the proposition that the exercise of an investigative power where a criminal prosecution has already begun may be a contempt of court.[26] Nor is it authority for the proposition that an abuse of the protections provided to hedge around investigative power may be unlawful, with the consequence that a conviction obtained by virtue of derivative use of information unlawfully extracted may be set aside on appeal.[27] Kable is a principle or concept concerned solely with validity of a law made by a Parliament of the State.
[25]Compare X7 v Australian Crime Commission (2013) 248 CLR 92.
[26]Compare Hammond v The Commonwealth (1982) 152 CLR 188.
[27]Compare Lee v The Queen (2014) 253 CLR 455.
As stated by Gleeson CJ in Fardon v Attorney-General (Qld):[28]
“The decision in Kable established the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.”
[28](2004) 223 CLR 575, 591 [15].
More recently, in Duncan v Independent Commission Against Corruption,[29] the court said:
[29](2015) 324 ALR 1, 6-7 [16]-[17].
“As this Court recently noted in Attorney-General (NT) v Emmerson, the Kable principle stands for the proposition that, in the case of a State court capable of being invested with the judicial power of the Commonwealth:
State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid…
As was explained in HA Bachrach Pty Ltd v Queensland, Kable takes as its starting point:
… the principles applicable to courts created by the Parliament under s 71 [of the Constitution] and to the exercise by them of the judicial power of the Commonwealth under Ch III. If the law in question here had been a law of the Commonwealth and it would not have offended those principles, then an occasion for the application of Kable does not arise.” (footnote omitted)
Further, in Kuczborski v Queensland,[30] the plurality said:
“The Kable principle was most recently summarised in Attorney-General (NT) v Emmerson, where French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said (at [40]):
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid…
Decisions of this court establish that the institutional integrity of a court is taken to be impaired by legislation which enlists the court in the implementation of the legislative or executive policies of the relevant state or territory, or which requires the court to depart, to a significant degree, from the processes which characterise the exercise of judicial power.” (footnotes omitted)
[30](2014) 254 CLR 51, 98 [139]-[140].
Also in Kuczborski, Hayne J (whilst in dissent) said this:[31]
“The central Kable principle is that the Parliaments of the states may not legislate to confer powers on state courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth. It is now accepted that, as Gummow J said in Fardon, ‘the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system’.
As the plurality pointed out in Condon v Pompano Pty Ltd, three points must be made about this ‘essential notion’. First, the notions of repugnancy and incompatibility are not susceptible of further definition in terms which necessarily dictate the outcome of future cases. Secondly, the repugnancy doctrine does not imply into the constitutions of the States the separation of judicial power required for the Commonwealth by Ch III. Thirdly, content must be given to the notion of ‘institutional integrity’ and that, too, is a notion not readily susceptible of definition in terms which will dictate future outcomes.
As was also said in Pompano, independence and impartiality are defining characteristics of all of the courts of the Australian judicial system. These are notions which connote separation from the other branches of government, at least in the sense that the courts must be and remain free from external influence. But, because the repugnancy doctrine does not imply into the constitutions of the states the separation of judicial power required for the Commonwealth by Ch III, there can be no direct application to the states of all aspects of the doctrines that have been developed in relation to Ch III. The repugnancy doctrine cannot be treated as simply reflecting what Ch III requires in relation to the exercise of the judicial power of the Commonwealth. Hence, there can be no direct and immediate application of what has been said in the context of Ch III about the ‘usurpation’ of judicial power. But, as the decisions in Kable, International Finance Trust Co Ltd v New South Wales Crime Commission, South Australia v Totani and Wainohu v New South Wales show, not only the task which is given to a state court, but also the manner in which that court is required to perform the task, may require the conclusion that the legislation in question is invalid.” (footnotes omitted)
[31](2014) 251 CLR 51, 88-89 [102]-[104].
Procedural difficulty of an appeal if s 190 is invalid
One limb of the proceeding before this court is an application under s 195 of the CC Act for leave to bring a statutory appeal from a decision of a presiding officer made under s 194(3)(b) of the CC Act. The condition of this court’s power under s 195 is that there is a “decision of a presiding officer” under that section. However, if the applicant’s contention that s 190 is invalid were correct, a number of logical consequences must follow. First, there was no obligation of the applicant at the hearing to answer the question put to him under s 190(1). Second, there was no need to “claim to have a reasonable excuse” to engage s 194 of the CC Act in relation to the question. Third, the duty of the respondent as presiding officer to decide whether or not there was a reasonable excuse and the obligation of the presiding officer to require the applicant to answer the question if he decided that the applicant did not have a reasonable excuse were also not engaged. In other words, there would be no valid decision under s 194(3)(b) to engage the appellate jurisdiction of this court under s 195.
That is to say, an appeal under s 195 is not an appropriate proceeding to ventilate the applicant’s suggested Kable point. It would be appropriate, therefore, to dismiss the application for leave to appeal without considering any further questions.
Declaratory relief
However, the applicant also applies for declaratory relief. The declaration sought is that the applicant was entitled “and so had reasonable excuse” to refuse to answer questions put to him by the respondent as to his knowledge of the circumstances surrounding the murder of [Z] at [place redacted] on [date redacted] 2009. That question may be inapt, but an appropriate declaration as to invalidity could be framed if the applicant’s submissions were otherwise correct. In the circumstances, and to avoid any further delay in this dispute, it is appropriate to consider the substantive question on the application for declaratory relief.
The applicant’s contentions
The applicant submitted that ss 190 and 197 of the CC Act abrogate self-incrimination privilege and give only a limited protection in lieu thereof. That protection is a limited immunity against direct use, but there is no immunity against derivative use at all.
The applicant submitted that derivative use of a compulsorily extracted answer infringes upon the adversarial process in the same way as direct use. Because the CC Act permits derivative use, the applicant submitted it will interfere with or distort the exercise of judicial power at any subsequent criminal trial on indictment presented against the applicant. The applicant submitted that the fundamental principle of a system of accusatorial criminal process must by its nature begin at the time when a person reasonably suspected by an investigating authority is to be questioned.
Accordingly, the applicant submitted that the statutory abrogation of the privilege against self-incrimination under ss 190 and 197 is invalid on the Kable principle.
In support of the argument, the applicant relied on statements consistent with the operation of the Kable principle where a statute authorises a State court to act in a way that is inconsistent with or repugnant to the court’s institutional integrity.
In International Finance Trust Company Limited v New South Wales Crime Commission,[32] French CJ said:
[32](2009) 240 CLR 319, 352 [50], 353 [52].
“Gaudron J said [in Nicholas] that the essential character of a court and the nature of judicial power necessitate that a court not be required or authorised to proceed in a manner that does not ensure, inter alia, the right of a party to meet the case made against him or her. Gummow J put it thus:
‘The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature.’
... It is sufficient, for the present, to accept as a proposition that which Gummow and Crennan JJ accepted, albeit as a working hypothesis, when they said in Thomas: ‘it may be accepted for present purposes that legislation which requires a court exercising federal jurisdiction to depart to a significant degree from the methods and standards which have characterised judicial activities in the past may be repugnant to Ch III.’” (footnotes omitted)
In South Australia v Totani,[33] French CJ said:
“The third assumption is that the courts of the states continue to bear the defining characteristics of courts and, in particular, the characteristics of independence, impartiality, fairness and adherence to the open-court principle. This formulation is deliberately non-exhaustive. In considering the attributes of courts contemplated by Ch III of the Constitution it is necessary to bear in mind the cautionary observation of Gummow, Hayne and Crennan JJ in Forge that: ‘It is neither possible nor profitable to attempt to make some single all-embracing statement of the defining characteristics of a court.’ Nevertheless, as their Honours added:
‘An important element, however, in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.’” (footnotes omitted)
[33](2010) 242 CLR 1, 43 [62].
In a carefully constructed argument, the applicant’s counsel did not overlook that there are some statements that tend to characterise a law that affects the reception of evidence as not being a usurpation of judicial power in the context of a criminal trial, because “[a] law prescribing a rule of evidence does not impair the curial function of finding facts”.[34] However, that case was not concerned with the companion principle of a criminal trial or the Kable principle as such.
[34]Nicholas v The Queen (1998) 193 CLR 173, 189 [23].
In a similar vein, in Fardon McHugh J said:
“The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court’s capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised.”[35] (emphasis added)
[35](2004) 223 CLR 575, 601 [41].
The respondent’s contentions
The respondent submitted that, apart from the protection given against direct use of the answer by s 197, a court hearing a trial on indictment would retain power over the admissibility of evidence obtained by derivative use of the answer.
First, s 130 of the Evidence Act 1977 (Qld) provides:
“Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.”
Second, there are common law powers of the court to refuse to admit evidence if it would be unfair to the defendant to do so.[36]
[36]Driscoll v The Queen (1977) 137 CLR 517, 541; R v Swaffield (1998) 192 CLR 159, 189 [52]-[54]; X7 v Australian Crime Commission (2013) 248 CLR 92, 124 [58].
Third, the court would retain the power to prevent an abuse of process.[37]
[37]Jago v District Court (NSW) (1989) 168 CLR 23, 25.
Otherwise, the answer given may be used to discover evidence which would be admissible against a defendant, including the applicant.[38]
[38]Lee v NSW Crime Commission (2013) 251 CLR 196, 202 [2].
The respondent submitted that the institutional integrity of the courts is not undermined by the operation of ss 190 and 197. No provision of the CC Act confers a function or power on the courts in relation to derivative use of the answer or the courts powers to admit evidence. No defining characteristic which sets a court apart from other decision making bodies, including the reality and appearance of decisional independence and impartiality or the application of procedural fairness, is removed by the operation of the sections.[39]
[39]Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 71 [67].
Accordingly, the respondent submitted that the absence of a derivative use immunity in the CC Act does not render ss 190 and 197 repugnant to Ch III of the Australian Constitution.
Conclusion
In my view, the Kable principle is not engaged by ss 190 or 197 of the CC Act. Neither of those sections purports to confer any jurisdiction or power on a State court that exercises Federal jurisdiction. The weakness in the applicant’s argument is the contention that the companion principle to the accusatorial nature of a criminal trial, that the prosecution cannot compel the accused to assist it to discharge its onus, “must by its nature begin at the time the person is reasonably suspected by the investigating authority”. That is a step which, in my view, is not supported by authority. I do not accept, in principle, that it is part of the trial, notwithstanding that at common law, during the 19th and 20th Centuries, the courts developed rules as to the admissibility of answers given by an accused to questions put to him or her by police in a number of situations, and that statute regulated the admissibility of confessional evidence even before Federation.[40]
[40]Criminal Law Amendment Act 1894 (Qld), s 10.
Second, there is no suggestion that ss 190 or 197 has any direct legal effect on the functions of a court of the State whose jurisdiction is regularly invoked to hear a criminal trial on indictment. The substance of the applicant’s complaint is that the compulsory powers under s 190 and the surrounding sections will give an advantage to the investigating authority, and through them to the prosecuting authority, so that by derivative use of the answer they may be able to investigate so as to uncover and present evidence which might not otherwise have been obtained. The applicant submitted that would be unfair. I do not suggest that is an untenable view. But views may differ on such a subject.
In my view, those circumstances do not engage the implied constitutional prohibition identified in Kable. A statute of the Parliament of a State that confers investigative powers upon an officer of the executive does not, generally speaking, affect the institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system.
For those reasons, the application must be dismissed. It would be unhelpful for me to dilate further in these reasons, although it would be possible to expand on them. In my view, it is important that the decision in this case be made promptly. It is not in the best interests of the administration of justice for there to be further delays, particularly having regard to the fact that the applicant has been challenging the obligation to answer questions about the subject matter of the notice for more than four years to date.
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