XYN v Chief Examiner
[2016] VSC 137
•12 APRIL 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEAL LIST
S CI 2015 06352
| XYN | Plaintiff |
| v | |
| CHIEF EXAMINER | Defendant |
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JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 22 DECEMBER 2015, 28, 29 JANUARY 2016 |
DATE OF JUDGMENT: | 12 APRIL 2016 |
CASE MAY BE CITED AS: | XYN v CHIEF EXAMINER |
MEDIUM NEUTRAL CITATION: | [2016] VSC 137 |
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CONTEMPT - Does the compulsory examination of an accused person authorised by statute constitute a contempt?
CONSTITUTIONAL LAW – Does the effect of such a provision on the Court’s contempt power, substantially impair the institutional integrity of a Supreme Court of a State, which is incompatible with the role of that court under Chapter III of the Constitution? - Does the effect of such a provision on the Court’s contempt power, remove a defining characteristic of the Supreme Court of a State?
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Richter QC Mr L Howson | Theo Magazis & Associates |
| For the Defendant | Mr R Niall QC Ms R Sharp | Specialist Resources Lawyers, Crime Command, Victoria Police |
HIS HONOUR:
Introduction
By originating motion filed on 16 December 2015, the plaintiff seeks the following orders pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015:
(a) a declaration that s 29(2) of the Major Crime (Investigative Powers) Act
2004 (‘the Act’) is invalid;
(b) an order prohibiting the defendant, the Chief Examiner, from examining the plaintiff until the determination of the plaintiff’s criminal trial and any subsequent appeals, retrials or further order of this Court; and
(c) costs.
The trial proceeded on the basis of a statement of agreed facts. Because of confidentiality requirements in this case, I will briefly state the essential facts as follows:
(a)XYN has been charged with serious criminal offences and has been committed to stand trial for these offences.
(b)The Supreme Court has previously made a coercive powers order in respect of XYN pursuant to s 8 of the Act.
(c)The defendant issued a summons requiring XYN to attend for examination in relation to an ‘organised crime offence’, as defined in the Act. Part of the proposed examination of XYN relating to the organised crime offence also relates to or is otherwise connected with the subject matter of the criminal trial.
The legislative scheme
The Act empowers the Supreme Court to make an order authorising the use of coercive powers to investigate organised crime offences. Section 1 of the Act provides that the purposes of the Act are:
(a)to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences; and
(b)to combat and reduce the incidence of organised crime offences.
Section 3 of the Act provides that an ‘organised crime offence’ has the meaning given by s 3AA of the Act, which provides as follows:
(1) For the purposes of this Act, organised crime offence means an indictable offence against the law of Victoria that—
(a) is punishable by level 5 imprisonment (10 years maximum) or more; and
(b) involves 2 or more offenders; and
(c) satisfies subsection (2) or (3).
(2) An offence satisfies this subsection if the offence—
(a) involves substantial planning and organisation; and
(b) forms part of systemic and continuing criminal activity; and
(c) has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child.
(3) An offence satisfies this subsection if 2 or more of the offenders involved in the offence are, at any time, either declared individuals or a declared organisation members.
(4) It is immaterial that the offence was committed before the commencement of this Act.
Section 4 of the Act provides that:
A coercive powers order authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made.
Procedure
A police officer, with the approval of the Chief Commissioner or his or her delegate, may apply to the Supreme Court for a coercive powers order if the police officer suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.[1]
[1]The Act s 5.
The Supreme Court may make a coercive powers order if satisfied that:
(a)there are reasonable grounds for the suspicion founding the application for the order; and
(b)it is in the public interest to make the order, having regard to—
(i)the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and
(ii)the impact of the use of coercive powers on the rights of members of the community.[2]
The coercive powers order must specify certain matters and may include conditions on the use of coercive powers.[3]
[2]The Act s 8.
[3]The Act s 9.
After the making of a coercive powers order, the Supreme Court retains the power:
(a) to revoke the coercive powers order;[4] and
(b)to vary an existing coercive powers order on the application of a police officer with the approval of the Chief Commissioner or his or her delegate.[5]
[4]The Act s 12.
[5]The Act s 10.
The examination
After a coercive powers order is made, the Chief Examiner (or the Supreme Court) may issue a summons to a witness to attend an examination before the Chief Examiner.[6]
[6]The Act ss 14, 15.
The Chief Examiner may conduct the examination of a person in relation to an organised crime offence[7] and ‘may commence or continue to conduct an examination of a person despite the fact that any proceedings (whether civil or criminal) are on foot, or are instituted, in any court or tribunal that relate to or are otherwise connected with the subject-matter of the examination, including criminal proceedings against the person in respect of that subject-matter’.[8]
[7]The Act s 29.
[8]The Act s 29(2).
The witness is not excused from answering a question on the ground that the answer to that question might tend to incriminate the witness.[9] Pursuant to s 39(1A), this abrogation applies ‘whether or not the person has been or may be charged with an offence in respect of the subject-matter of the question, information, document or thing’. However, the Act specifically does not confer derivative use immunity; and therefore evidence obtained, as a consequence of evidence given in an examination, is admissible.[10]
[9]The Act s 39(1).
[10]The Act s 39(4).
Protective provisions
Unless the Supreme Court orders otherwise, a person who publishes a report of a proceeding in respect of, or derived from, an application for a coercive powers order is guilty of an indictable offence and liable to up to five years’ imprisonment. [11]
[11]The Act s 7(1).
The Chief Examiner (or the Supreme Court) may give a proposed witness a written notice stating that the summons or order is a confidential document, and that it is an offence to disclose it to anyone.[12] Such a notice must be given if the Chief Examiner (or the Supreme Court) is satisfied that a failure to do so would reasonably be expected to prejudice, relevantly, the fair trial of a person who has been or may be charged with an offence.[13]
[12]The Act s 20(1).
[13]The Act s 20(2).
The Act provides direct use immunity with respect to evidence obtained under examination and provides, in particular, that such evidence is not admissible in evidence against the person in a criminal proceeding.[14]
[14]The Act s 39(3).
The examination must be held in private and the Chief Examiner is empowered to give directions as to the persons who may be present.[15] Notwithstanding such power to make directions, nothing prevents a witness from being legally represented when evidence is being taken.[16]
[15]The Act s 35(1).
[16]The Act s 35(2).
Section 43(1) of the Act provides that the Chief Examiner may direct that:
(a) any evidence given before the Chief Examiner; or
(b)the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c)any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination—
must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.[17]
Further, the Chief Examiner must give such a direction if satisfied that failure to do so would reasonably be expected to prejudice, relevantly, the fair trial of a person (including a witness) who has been or may be charged with an offence.[18] A person who makes a publication or communication in contravention of such a direction is guilty of an indictable offence and liable to up to five years’ imprisonment.[19]
[17]The Act s 43(1).
[18]The Act ss 43(2)(b), (2A).
[19]The Act s 43(3).
The Chief Examiner, Examiners and members of Victoria Police personnel are prohibited from divulging information acquired by them in the course of performing their functions under the Act unless it is for purposes of investigating or prosecuting an offence.[20] Failure to comply with an obligation is an indictable offence punishable by up to five years’ imprisonment.[21]
[20]The Act s 68.
[21]The Act s 68(2).
Protective action taken by the Chief Examiner in this case
After issuing a witness summons to the plaintiff, the defendant has taken the following action relevant to the prevention of any prejudice to a fair trial of the plaintiff:
(a)The defendant gave a confidentiality notice to the plaintiff pursuant to s 20 of the Act.
(b) The plaintiff was granted leave to be legally represented at the examination.[22]
(c)The defendant made a non-publication direction prohibiting the disclosure of the plaintiff’s examination other than to members of Victoria Police personnel attached to the Office of the Chief Examiner for the purposes of those personnel investigating the organised crime offences, on the basis that the defendant was satisfied that failure to do so would reasonably be expected to prejudice the fair trial of the plaintiff. The non-publication direction specifically prohibits publication or communication by the Chief Commissioner of Police (or as otherwise provided for in s 67 of the Act to the Director of Public Prosecutions), to the informant in the pending criminal trial, or any member of the relevant police investigation unit of Victoria Police, until the conclusion of the plaintiff’s criminal trial.
[22]Although, contrary to the contention of the defendant, it would appear that leave is not required under s 35(2).
Submissions
The plaintiff submitted as follows:
(a)The compulsory examination of an accused person about the circumstances relating to the offences the subject of the charges (‘Compulsory Examination of an Accused’) constituted a fundamental interference with the accusatorial process of criminal justice. The application of the protective provisions and directions under the Act did not prevent the fundamental alteration, because, as in X7 v Australian Crime Commission,[23] ‘defence counsel cannot mount arguments inconsistent with instructions, neither can counsel do so inconsistently with the accused person’s answers under oath in a compulsory examination’ (‘Conduct of the Defence Restraint’).
(b)Such a fundamental interference with the accusatorial process of criminal justice constituted a contempt.
(c)The contempt power is a ‘defining characteristic’ of a State Supreme Court.[24]
(d)Section 29(2) of the Act was beyond legislative power because it purported to limit the contempt power of the Supreme Court by precluding it from preventing the interference with the due administration of justice constituted by the Compulsory Examination of an Accused.
[23](2013) 248 CLR 92, 127 [71] (Hayne and Bell JJ), 152-3 [157] (Kiefel J) (‘X7’).
[24]As explained by Kirk v Industrial Courtof New South Wales (2010) 239 CLR 531, 566 [55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The defendant contested the propositions in parts (b), (c) & (d) of [19] above.
Is Compulsory Examination of an Accused a contempt?
The plaintiff contended that the Compulsory Examination of an Accused constitutes a contempt either because:
(a)the Compulsory Examination of an Accused per se; or
(b)the Compulsory Examination of an Accused with the safeguards provided by the Act;
had been determined to constitute a contempt by the majority in X7. In particular, the plaintiff relied upon the following statement by Hayne and Bell JJ:
As has been explained, if [a fundamental alteration to the accusatorial judicial process] is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment. If the relevant statute does not provide clearly for an alteration of that kind, compelling answers to questions about the subject matter of the pending charge would be a contempt.[25]
[25]X7 (2013) 248 CLR 92, 143 [125] (emphasis added).
There is no issue, in this case, that the enactment of s 39(1A) of the Act satisfied the requirement of express words that the majority in X7 held were necessary, for the purposes of statutory construction, to effect such a fundamental alteration. However, the plaintiff submitted that their Honours’ statement supported the proposition that compulsory examination of the plaintiff in this case would be a contempt; and was binding on this Court.
It was common ground that the protective provisions applied by the Chief Examiner in this case were similar to those applied by the examiner in X7.
The plaintiff submitted that Lee v New South Wales Crime Commission[26] was distinguishable on the basis that the Compulsory Examination of an Accused in that case was to be conducted by the Supreme Court. However, the defendant submitted that the supervisory powers of the Supreme Court under ss 10 and 12 of the Act, made the reasoning in Lee No 1 applicable to the Compulsory Examination of an Accused in this case.
Consideration of X7
[26](2013) 251 CLR 196 (‘Lee No 1’).
In X7,[27] X7 had been arrested and charged with three indictable offences under the Criminal Code Act 1995 (Cth). After his arrest, but before his trial, X7 was summonsed to appear and give evidence at an examination conducted under the Australian Crime Commission Act 2002 (Cth) (‘the ACC Act’). The ACC Act:
[27](2013) 248 CLR 92.
(a) empowered an examiner to summons a person to appear and be compulsorily examined;
(b) specifically abrogated the privilege against self-incrimination; and
(c) conferred a direct use immunity.
With respect to the conduct of an examination and the publication of evidence, ss 25A(3) and 25A(9) of the ACC Act provided as follows:
(3)An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.
…
(9) An examiner may direct that:
(a) any evidence given before the examiner; or
(b)the contents of any document, or a description of any thing, produced to the examiner; or
(c)any information that might enable a person who has given evidence before the examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination;
must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
On the first day of X7’s examination, after the examiner explained that any evidence given by X7 before the Australian Crime Commission (‘ACC’) would not be disclosed to prosecutors, X7 answered questions concerning the subject matter of the offences with which he had been charged. On the second day, X7 declined to answer questions on those matters; and he was informed that he would be charged with failing to answer questions. The examiner then gave a direction to X7 under s 25A(9) of the ACC Act, relevantly, to the following effect:
(a) the evidence given by X7, the contents of documents produced by him during the examination, any evidence that might enable X7 to be identified, and the fact that X7 had given evidence must not be published (except for purposes not relevant here); and
(b) prosecutors or police officers associated with the prosecution of the offences with which X7 had been charged were not entitled to receive a copy of the evidence given by X7 at the examination.
X7 subsequently commenced proceedings in the original jurisdiction of the High Court seeking certain declarations and injunctions; and the matter proceeded as a case stated reserving the following questions for consideration by the Full Court:
(1)Does Division 2 of Part II of the ACC Act empower an examiner appointed under s 46B(1) of the ACC Act to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged?
(2)If the answer to Question 1 is ‘Yes’, is Division 2 of Part II of the ACC Act invalid to that extent as contrary to Ch III of the Constitution?
Critical to the analysis of the members of the High Court in X7 was that the privilege against self-incrimination, which had been expressly abrogated by the ACC Act, was only one aspect of the right to silence of an accused or the right to not be compelled to assist the prosecution in discharging the onus of proving a criminal offence.[28] The so-called ‘right to silence’ is in fact ‘a convenient description of a collection of principles and rules: some substantive, and some procedural; some of long standing, and some of recent origin’, which differ in ‘incidence and importance, and also as to the extent to which they have already been encroached upon by statute’.[29] In Lee No 1,[30] Gageler and Keane JJ identified the most pertinent principles and rules as the following:
(a)The right of any person to refuse to answer any question except under legal compulsion.
(b)The privilege of any person to refuse to answer any question at any time on the ground of self-incrimination.
(c)The right of any person who believes he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.
(d)The right of a person charged with a criminal offence to a fair trial, ‘more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial’.[31]
[28]Ibid 123 [55] (French CJ and Crennan J), 140 [118] (Hayne and Bell JJ), 153 [159] (Kiefel J).
[29]Azzopardi v The Queen (2001) 205 CLR 50, 57 [7] (Gleeson CJ) cited in Lee No 1 (2013) 251 CLR 196, 313 [318] (Gageler and Keane JJ).
[30](2013) 251 CLR 196.
[31]Ibid 313, [318] quoting Dietrich v The Queen (1992) 177 CLR 292, 299 (Mason CJ and McHugh J). See also at 326-8, 362.
In X7, Hayne and Bell JJ said that the protective actions taken by the examiner did not avoid prejudice to the accused because his counsel would still be subject to the Conduct of the Defence Restraint. Their Honours stated:
Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case.[32]
[32]X7 (2013) 248 CLR 92, 127 [71] (Hayne and Bell JJ) (emphasis in original).
Hayne and Bell JJ specifically did not answer the second question because they concluded that a Compulsory Examination of an Accused was not authorised by the ACC Act; and therefore answered the first question ‘No’. Accordingly, it was not necessary to answer the second question.[33] In so concluding, their Honours reasoned as follows:
(a)A statutory provision, which permitted the compulsory examination of a person charged with an offence about the subject matter of the pending charge, would ‘effect a fundamental alteration to the process of criminal justice’.[34]
(b)By the application of the principle of legality, as a matter of statutory construction, a statutory provision would only be interpreted as effecting a fundamental alteration to the process of criminal justice if the legislature expressed itself ‘clearly by express words or necessary intendment’.[35]
(c)The legislature did not express itself with the necessary clarity for the following reasons:
(i)The relevant provisions do not expressly provide for the compulsory examination of a person charged with an indictable Commonwealth offence.[36]
(ii)The legislative history of the ACC Act provided little or no assistance in dealing with the question of construction.[37]
(ii)The relevant provisions ‘when read in their context, do not imply, let alone necessarily imply, any qualification to the fundamentally accusatorial process of criminal justice which is engaged with respect to indictable Commonwealth offences’.[38]
[33]Ibid 130 [79], 140 [119].
[34]Ibid 140 [118].
[35]Ibid 140-1 [119], 131-2 [86]-[87].
[36]Ibid 148-9 [142].
[37]Ibid 131 [84].
[38]Ibid 150 [147] (emphasis in original).
Conclusion - Compulsory Examination of an Accused is not a contempt
Accordingly, the plaintiff’s submission in this case that the statement of Hayne and Bell JJ in paragraph 125 of X7[39] as cited at [21] above, is binding authority that a Compulsory Examination of an Accused is necessarily a contempt, is premised on the contention that a fundamental alteration to the process of criminal justice must necessarily equate to, or constitute, a contempt of court. This contention must be rejected for the following reasons:
(a)The ratio of the majority in X7 was based on statutory construction.
(b)The majority in X7 did not find that conduct which fundamentally altered the accusatorial process of criminal justice necessarily constituted a contempt.
(c)The minority in X7 found that a Compulsory Examination of an Accused, with the safeguards under the ACC Act, did not constitute a contempt.
(d)Gageler and Keane JJ in Lee No 1[40] found that a Compulsory Examination of an Accused, with the safeguards under the Criminal Assets Recovery Act1990 (NSW) (‘the CAR Act’) did not constitute a contempt.
I will address each reason in turn.
[39](2013) 248 CLR 92.
[40](2013) 251 CLR 196.
The ratio of the majority in X7 was based on statutory construction
The critical finding of Hayne and Bell JJ was that the relevant statutory provision fundamentally altered the process of criminal justice to a marked degree; and whether or not the examination of X7 would constitute a contempt was not a necessary finding or the subject of any analysis by their Honours. In fact, their Honours specifically eschewed the question of whether a compulsory examination about the subject matter of a pending charge would result in an ‘unfair’ trial;[41] and did not consider the provisions which provided protection for a fair trial under the ACC Act because it was not appropriate or necessary for the purpose of statutory construction.[42]
The majority in X7 did not find that conduct, which fundamentally altered the accusatorial process of criminal justice, necessarily constituted a contempt
[41]X7 (2013) 248 CLR 92, 133 [89].
[42]See the explanation of X7 in Lee v The Queen (2014) 308 ALR 252, 259 [31] (French CJ, Crennan, Kiefel, Bell and Keane JJ).
Hayne and Bell JJ recognised that there had been statutory provisions, which effected changes made directly to the accusatorial system of criminal justice, and gave as examples:
(a)the requirement of an accused to give notice of alibi;[43]
[43]See eg Criminal Procedure Act 1986 (NSW) s 150; Criminal Procedure Act 2009 (Vic) s 190.
(b)the requirement of an accused to give notice of his/her intention to adduce expert evidence at trial;[44] and
[44]See eg Criminal Procedure Act 2009 (Vic) s 189. See also Criminal Procedure Act 1986 (NSW) s 151(1) with respect to evidence of ‘substantial mental impairment’.
(c)the requirement of the accused to respond to the prosecution’s summary of how it will put its case against the accused, by identifying ‘the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’.[45]
It was not suggested:
(a) that these alterations were other than fundamental changes to the accusatorial process of criminal justice; nor
(b)that a person enforcing these provisions would be in contempt.
[45]See eg Criminal Procedure Act 2009 (Vic) ss 183(1), 183(2).
It may be accepted that conduct, which is fundamentally inconsistent with the accusatorial process of criminal justice, may in some circumstances interfere with the due administration of justice and constitute a contempt. However, in X7, Hayne and Bell JJ did not equate a fundamental alteration to the process of criminal justice with a contempt. Gageler and Keane JJ concluded as much in Lee No 1 when their Honours said:
Hammond[46] is not authority for the proposition that a real risk to the administration of justice necessarily, or presumptively, arises by reason only of the exercise of a statutory power to compel the examination on oath of a person against whom criminal proceedings have been commenced but not completed where the subject matter of the examination will overlap with the subject matter of the proceedings. The majority in X7 does not appear to us to have embraced such a proposition.[47]
The minority in X7 found that Compulsory Examination of an Accused, with the safeguards under the ACC Act, did not constitute a contempt
[46](1982) 152 CLR 188.
[47](2013) 251 CLR 196, 315 [322] (emphasis added). Their Honours distinguished Hammond on the basis that, in that case, there had been derivative use because the Court had found that ‘the police officers who had investigated the matters upon which the plaintiff was to be examined were permitted to be present’ at 314‑5 [321].
The minority in X7, French CJ and Crennan J, said that the use of derivatively obtained material to establish a person’s guilt or to disclose defences could not be reconciled with a fair trial.[48] However, their Honours analysed the effect of the provisions under the ACC Act, which were designed to ensure there was a fair trial, and said that:
To the extent that the plaintiff will nevertheless be affected by compulsory examination after he has been charged with offences, that consequence is necessarily implied by the terms of the examination provisions, which have already been described.[49]
[48](2013) 248 CLR 92, 123 [54].
[49]Ibid 123-4 [57].
Their Honours were satisfied that the protective powers under the ACC Act should be sufficient to ensure that the derivative evidence did not prejudice the fair trial, stating:
It can be acknowledged that there may be some circumstances in which the fairness of a trial can be reconciled with the admissibility of derivative evidence. Not all derivative evidence is of the same quality and derivative evidence may emerge from multiple independent sources. At the outset of an investigation, it may not be clear what derivative evidence will be critical to proving offences, or from which independent sources such evidence might be obtained. However, to the extent that the prosecution may wish to rely on a piece of derivative evidence which was independently obtained, but which was the subject of a protective direction, the CEO has a power to vary a direction given under s 25A(9), provided that the fair trial of the accused is not thereby prejudiced. In any event, the trial judge has a discretion in relation to the admissibility of such evidence, and the court has a power to control any use of derivative evidence which amounts to an abuse of process.
If there is some failure to employ the protective provisions such that the prosecution would obtain an unfair forensic advantage, a trial court’s inherent power to punish for contempt, including a power to restrain a threatened contempt, would be available, as in Hammond.[50]
[50]Ibid 124 [58]-[59] (citations omitted).
Accordingly, the minority concluded that, on the stated case, one could not come to a conclusion about whether the prosecution would obtain an unfair forensic advantage at the trial from derivatively obtained evidence. Their Honours said that whether the protective directions would be sufficient would have to be determined by reference to:
(a) the nature of the self-incriminating evidence;
(b) the role of the persons who had access to it; and
(c) the use to which such persons might make of it.[51]
[51]Ibid 124-5 [61].
In my opinion, the minority in X7 were stating that whether the Compulsory Examination of an Accused would cause an unfair forensic advantage at the trial, such as to affect the due administration of justice, was a matter which could only be determined in all of the circumstances of the case. Accordingly, the minority found, as is conceded by counsel for the plaintiff in the present case, that the proposed examination did not constitute a contempt.
In Lee No 1, Gageler and Keane JJ found that a Compulsory Examination of an Accused, with the safeguards under the CAR Act, did not constitute a contempt
The High Court gave further consideration to the power of the legislature to make provisions for Compulsory Examination of an Accused in Lee No 1.[52]
[52](2013) 251 CLR 196.
This case concerned an application by the New South Wales Crime Commission for the New South Wales Supreme Court to make orders to examine two persons who had been charged with various criminal offences under the CAR Act. Section 31D(1) of the CAR Act broadly provided that, on application for a confiscation order, the ‘affected person’[53] could be examined concerning the affairs of the affected person, including the nature and location of any property in which the affected person had an interest. The CAR Act abrogated the privilege against self-incrimination and provided a direct use immunity; but expressly did not provide an immunity with respect to derivative use. The majority, consisting of French CJ, Crennan, Gageler and Keane JJ, held that s 31D(1) of the CAR Act did empower the Court to make an order for the examination of a person charged with criminal offences about conduct that was the subject of criminal charges against that person.
[53]As defined by s 31D(4) of the CAR Act.
Gageler and Keane JJ found that the Supreme Court could ‘order the examination of a person against whom criminal proceedings had been commenced but not completed where the subject matter of the examination will overlap with the subject matter of those proceedings’[54] on the basis of the following reasoning:
(a)As a matter of statutory construction, the CAR Act authorised such an examination ‘whether or not criminal proceedings are pending’.[55]
(b)The principle of legality applied and so ‘[a statute] expressed in general terms should not be construed so as to authorise the doing of any act which amounts to a contempt of court’.[56] However, for a contempt of court to arise there had to be an actual interference or real risk, as opposed to a remote possibility, of such interference. What was required was a ‘real and definite tendency to prejudice or embarrass pending proceedings’ involving ‘as a matter of practical reality, a tendency to interfere with the due course of justice in a particular case.’[57]
[54]Lee No 1 (2013) 251 CLR 196, 294 [268].
[55]Ibid 318 [331].
[56]Ibid 313-4 [319] quoting Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460, 473.
[57]Ibid 314 [320] quoting John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, 370, 372 quoted in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (BLF case) (1982) 152 CLR 25, 56, 166.
In order to make such a finding, their Honours said as follows:
The finding of such a real risk or definite tendency necessarily requires more than abstract assertion: it requires the finding at least of some logical connection between the action that is impugned and some feared impediment to the conduct of the proceedings that are pending, which impediment can properly be characterised as an interference with the administration of justice or, more specifically in a particular case, as unfairness to an accused.[58]
[58]Ibid 314 [320].
Their Honours acknowledged that the examination on oath of a person against whom criminal proceedings had been commenced could have a tendency to give rise to unfairness amounting to an interference with the due course of justice in a variety of ways ‘as a matter of practical reality’;[59] and the deprivation of a legitimate forensic choice may be one such way. However, their Honours did not consider that the Conduct of the Defence Restraint would constitute such an interference with the due administration of justice. Their Honours went on to say:
However, we are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination. The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring that the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt.
The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle and is not consistent with Hamilton v Oades.[60]
[59]Ibid 315‑6 [323].
[60]Ibid 316 [323]-[324] (citations omitted) (emphasis added).
In my opinion, there was nothing in the reasons of Gageler and Keane JJ to suggest disagreement with the proposition adopted by the majority in X7 – that proposition being that the Conduct of the Defence Restraint consequent on the Compulsory Examination of an Accused effected a fundamental alteration to the process of criminal justice so as to give rise to the application of the principle of legality. However, their Honours did not find that the Conduct of the Defence Restraint constituted such an interference with the due course of justice as to constitute a contempt.
The difference between the significance of prejudice to the accused arising from:
(a) the Conduct of the Defence Restraint; and
(b)derivative use consequent on the content of the examination being made available to the prosecution,
was highlighted in the case of Lee v The Queen.[61] The appellants, who had been compulsorily examined before the New South Wales Crime Commission after Lee No 1, appealed from convictions in the related criminal trial on the basis that the content of the examinations had been disclosed to the prosecution. The High Court found that the advantage conferred on the prosecution by such a disclosure constituted a fundamental departure from the system of justice and thus the appellants’ convictions were quashed and a new trial ordered.[62]
[61](2014) 308 ALR 252 (‘Lee No 2’).
[62]Ibid 263 [46].
I should add that I accept the plaintiff’s submission that Lee No 1 is not binding authority on the issue in this case because the reasoning in that case, particularly of French CJ and Crennan J, recognised the significance of the fact that the examination was to be undertaken by the Supreme Court.[63] However, neither does the plaintiff get any support from the minority in Lee No 1, who decided, as a matter of statutory construction, that the legislative intent did not extend to the CAR Act authorising the Compulsory Examination of an Accused.[64] Legislative intent is not an issue in this case.
[63]Ibid 221 [36], 223-4 [40]-[41], 227 [48], 230‑1 [56] (French CJ); 254-255 [137], 255-256 [141], 258 [151] (Crennan J).
[64] Hayne, Kiefel and Bell JJ.
Accordingly, in my opinion, there is no authority that supports the plaintiff’s contention that a Compulsory Examination of an Accused, either per se or with the safeguards provided by the Act, constitutes a contempt. Further, for the reasons stated above, I consider such a proposition is inconsistent with the reasons of French CJ and Crennan J in X7; and the reasons of Gageler and Keane JJ in
Lee No 1.
Is any statutory interference with the contempt power invalid?
Based on the premise[65] that s 29(2) authorised what would otherwise be a contempt of court, the plaintiff contended that the subsection was invalid because it purported to:
(a)remove a defining characteristic of the State Supreme Court (‘the Kirk principle’[66]); and
(b)substantially impair the institutional integrity of a state court, which is incompatible with the role of that court under Chapter III of the Constitution (‘the Kable principle’[67]).
[65]Which I have found not to be correct.
[66]See Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (‘Kirk’).
[67]See Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 (Toohey, Gaudron, McHugh and Gummow JJ; Brennan CJ and Dawson J dissenting) (‘Kable’).
In Kable,[68] the High Court considered the validity of s 5 of the Community Protection Act 1994 (NSW) which authorised the New South Wales Supreme Court to preventatively detain a specified person, Mr Gregory Kable, upon the satisfaction of certain conditions. Pursuant to s 5, Mr Kable was ordered to be detained in prison for six months. The order was upheld by the Court of Appeal and Mr Kable appealed to the High Court. The High Court held that the Act was invalid because it required the Supreme Court to participate in the making of an order where there was no breach of the criminal law alleged and there was no determination of guilt. Accordingly, it offended the obligation under s 71 in Chapter III of the Constitution which impliedly requires the Supreme Court of a State not to be conferred with powers which are repugnant to, or inconsistent with, the exercise by it of the judicial power of the Commonwealth.[69] The principle in Kable 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’.[70]
[68]Ibid.
[69]Ibid 98 (Toohey J), 107 (Gaudron J), 110 (McHugh J).
[70]Attorney-General (NT) v Emmerson (2014) 307 ALR 174, 185 [40].
In Kirk,[71] the High Court considered the validity of ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW). In substance, these sections required employers to ensure the health and safety of employees; and a failure to do so constituted an offence. Section 53(a) provided that ‘It shall be a defence … for the [accused person] to prove that [inter alia] … it was not reasonably practicable for the [accused] person to comply with the provision of this Act’.
[71]Kirk (2010) 239 CLR 531.
The Industrial Court of New South Wales, it was later found, erroneously:
(a) construed the Act as not requiring the prosecutor to demonstrate that any particular measure should have been taken; and
(b) called one of the defendants as a witness contrary to s 17(2) of the Evidence Act 1995 (NSW).
Pursuant to s 179 of the Industrial Relations Act 1996 (NSW), the decision of the Industrial Court was ‘final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal’. Section 179(5) extended the privative clause to proceedings for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, injunction, declaration or otherwise.
The High Court held that it was beyond the power of a state parliament to take from a Supreme Court of a State the power to grant relief for jurisdictional error on the part of the inferior courts and tribunals because Chapter III of the Constitution required that there be a body fitting the description of ‘the Supreme Court of a State’. The High Court stated as follows:
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts.[72]
[72]Ibid 580 [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In this case, the defendant did not contest the plaintiff’s proposition, based on these authorities, that a parliament of a state is prevented by the provisions of Chapter III of the Constitution from:
(a)conferring on a State Supreme Court functions or powers which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth;[73] or
(b)removing from a State Supreme Court a defining characteristic such that it ceases to meet the constitutional description of ‘the Supreme Court of a State’.[74]
However, the defendant contests that:
(a)s 29(2) of the Act does limit the Court’s power to punish for contempt; and alternatively
(b)any such limitation offended the principles in either Kable or Kirk.
[73]Kable (1996) 189 CLR 51, 103 (Gaudron J).
[74]Kirk (2010) 239 CLR 531, 566 [55], 580 [96].
It is well established that it is not possible to precisely identify the defining characteristics of a Supreme Court of a State.[75] However, it has been held that those characteristics include:
(a)the reality and appearance of decisional independence and impartiality;
(b) the application of procedural fairness;
(c) adherence as a general rule to the ‘open court’ principle; and
(d) the provision of reasons for the Court’s decisions.[76]
[75]Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 [64] (Gummow, Hayne and Crennan JJ).
[76]Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, 71 [67] (French CJ) (citations omitted).
The plaintiff contends that s 29(2) of the Act is invalid because it authorises the Compulsory Examination of an Accused which, it is contended, is a contempt of court. If it is valid, the provision would have the effect of depriving the Supreme Court of a State of its power to punish for such a contempt, and in doing so:
(a) it would impair the Court’s institutional integrity; and
(b) remove a defining characteristic of the Court.
In this case, the submission must fail because I have found that a Compulsory Examination of an Accused, either per se or with the safeguards provided by the Act, does not constitute a contempt.
However, at the other extreme, the defendant conceded that a statute which absolutely removed the power of the Court to punish for contempt would be invalid.
Accordingly, the question in a case such as this must be: To what extent may a statute interfere with the right to silence before it crosses the line of constitutional invalidity? Certainly, the intrusions into the right to silence referred to above[77] have not given rise to any questions of constitutional invalidity and, as French CJ and Crennan J observed in X7, the ‘argument that an accused’s rights to due process (including the right to refrain from giving evidence at trial) are entrenched by Ch III was too broadly stated’.[78]
[77]See [34] above and X7 (2013) 248 CLR 92, 121 [48] (French CJ & Crennan J).
[78]X7 (2013) 248 CLR 92, 120 [48].
The defendant relied upon Nicholas v The Queen[79] as demonstrating that not all intrusions on the integrity of court processes will be invalid. In Nicholas, the High Court considered the validity of Section 15X of the Crimes Amendment (Controlled Operations) Act 1996 (Cth) which provided that, in determining whether evidence that narcotic goods were imported into Australia in contravention of the Customs Act 1901 should be admitted, ‘the fact that a law enforcement officer committed an offence in importing the narcotic goods … is to be disregarded [subject to the satisfaction of certain conditions]’.[80]
[79](1998) 193 CLR 173 (Brennan CJ, Toohey, Gaudron, Gummow and Hayne JJ, McHugh and Kirby JJ dissenting) (‘Nicholas’).
[80]Ibid 167.
The charges against the accused had been permanently stayed on the basis of Ridgeway v The Queen, which established that the discretion to exclude evidence unlawfully obtained by police lay in the ‘inherent or implied powers of our courts to protect the integrity of the processes’.[81] Section 15X was enacted in response to Ridgeway and the accused challenged its validity on the basis that it was an impermissible interference with the judicial power of the Commonwealth.
[81](1995) 184 CLR 19, 31 (Mason CJ, Deane and Dawson JJ) (‘Ridgeway’).
The High Court held that s 15X was a valid law of the Commonwealth. However, Hayne J noted that the abolition of the discretion may have given rise to different questions than the conditioned limitation provided in s 15X. His Honour stated as follows:
The facts that the discretion is a creature of the common law and is concerned with the protection of the integrity of the courts' processes do not mean that the discretion cannot be affected by legislation. There are many rules which have been developed by the common law which have been changed or even abolished by legislation and yet it is not suggested that such legislation intrudes upon the separation of judicial and legislative powers. Nor do the facts that the discretion is designed to protect the integrity of the courts and that the discretion is ‘an incident of the judicial powers vested in the courts’ take the discretion altogether beyond the reach of the legislature. Whether other considerations would arise if Parliament attempted to abolish the discretion altogether is a question I need not, and do not, address. The legislation now in question does not abolish the discretion — it affects only some kinds of prosecutions and then only in the limited circumstances that are prescribed in the legislation.[82]
[82]Nicholas (1998) 193 CLR 173, 272-3 [234] (emphasis added).
On the other hand, although the validity of these legislative intrusions into the right to silence has not been questioned, the attitude of the High Court in Lee No 2[83] to the disclosure of transcripts of the accused to the prosecuting authorities after (what was held to be in Lee No 1[84]) a legal Compulsory Examination of an Accused may indicate the approach that would be taken if there is a real prospect of such an examination impacting on the fairness of the trial. The Court emphasised the need to protect the fair trial of the accused stating:
Our system of criminal justice reflects a balance struck between the power of the state to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that ‘no attempt to whittle it down can be entertained’ albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.[85]
[83](2014) 308 ALR 252.
[84](2013) 251 CLR 196.
[85]Lee No 2 (2014) 308 ALR 252, 260 [32] (French CJ, Crennan, Kiefel, Bell and Keane JJ) (citations omitted).
Given my finding that a Compulsory Examination of an Accused does not of itself constitute a contempt, I do not consider that I can or should make any comments about whether, and if so to what extent, an infringement on a court’s power to punish for contempt, arising from interference with the right to silence, would invoke the principles in Kable or Kirk.
Orders
I propose to dismiss the originating motion and I will hear the parties on other orders.
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