C v National Crime Authority [1987] FCA 685

SOSGMENT N.G8S/ Bz

CATCHWORDS

Administrative Law - order of review - privilege against self

incrimination - whether applicant entitled to refuse to answer any further questions during hearing before National Crime Authority - whether the privilege could be claimed ona

"blanket objection."

Administrative Decisisns tJudicial Reviawi Act 1977

C vs. NATIONAL CRIME AUTHORITY

NORTHROP J. 27 NOVEMBER 15987

MELBOURNE

RECEIVED ~S3 BEC i987

FEDERAL COURT OF AUSTRALIA,

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REGISTRY

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IN THE FEDERAL COURT OF AUSTRALTA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISTON

BETWEEN : c and

NATIONAL CRIME AUTHOPITY COURT: NORTHROP J. DATE : 27 NOVEMBER 1987 PLACE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS THAT: -

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The decision of the Auth y be atfirmed.

The application be dismissed.

The applicant pay the Authority 5 costs application.

Applicant

Respondent

(Settlement and entry of Orders is dealt with in 0.36 of Rules of Court.)

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IN THE FEDERAL COURT OF AUSTRALIA ) )

VICTORIA DISTRICT REGISTRY ) V. No. G 239 of 1387 ) )

GENERAL DIVISION

BETWEEN :

C Applicant and NATTONAL CRIME AUTHORITY? Respondent

COURT: NORTHROF J. H Lua)

27 NOVEMBER 15387

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MELBOURNE

REASONS FOR JUDGMENT

The issue raised by this application is whether the decision of the National Crime Authority ("the Authority")

constituted under the National Crime Authority Act 1984 made

on 19 August 13387 that the claim by the applicant to he entitled to refuse to answer any further question put to him during a hearing béing conducted by the Authority under 53.25

of the Act was not justified, should be set aside.

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The nature oF a hearing under 5.25 15 discussed in

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a National Crime Authority published today and those reasons should be read as if they form part of these reasons. In fact, the applicant is the same person who is described in those reasons as the first witness. It 15 not proposed ts repeat in these reasons the analysis of parts of the Act as contained in those reasons but they are adopted for the purpose of these reasons. For present purposes it 15 sutficient to say that the applicant was summonsed to appear before the Authority to give evidence at the nearing being

conducted by the Authority under 5.25 of the Ack as described

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©e5 7. National Crime Authority. The applicant

was represented at the hearing by the legal practitioner of

his choice when the hearing commenced on 17 August 1387.

The relevant varts of 5.30 of the Act are set out:-

"(2) A person appearing as awitness at a hearing befor=s the Authority shall not, withouc reasonable excuse - ...

(b) refuse or fail to answer a question that he is required to answer by the member or acting member presiding at the hearing;

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(4) Subject to sub-sections (5), (7) and (93), 1t 15 a reasonable excuse for the purposes of sub-section .2) for a natural person -

(a) to refuse or fail Fo answer a question put to him at a hearing before the Authority; or

(Bb) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Authority,

that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate him. ...

{1lL)A person who contravenes sub-section (1), (2) or (3) is guilty of an offence punishable, upon conviction, by a fine not axceeding $1,000 or imprisonment for a period nct excéeding o months."

For present purposes, sub-sections 15), (7) and 13) are not relevant. They relate to the special position where the witness has been granted an immunity of the type described in

those sub-sections.

At the commencement of the hearing, the Authorzby gave directions under sub-section 25(5) of the Act as to the persons who were permitted to be present during that part of the hearing. It gave directions under sub-section 25(9) as to the non-publication of material and drew attention to the

criminal offence created by sub-sécti 25(12). The

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Authority then read to the applicant sub-section 30(4) of the Act and the Author1ty explained the earfect of that

sub-section and said to the applicant: -

"It a question, in your view, calls for an answar that may have a tendency Eo incriminate you, ols draw my attention to if if your counsel does not SO; or 1f you are asked to produce a document or thing that has that tendency, please draw my attention to it and I will rule on the matter. I have no doubt that your counsel will, under the appropriate circumstances, take objection to any question or objection to the production of the

document or thing that has that tendency."

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Counsel assisting the Authority then commenced toa question the applicant. No objection was taken to any of the questions asked. The further hearing was adjourned to 1% August 1987. Before any further questions were asked of the applicant at the resumed hearing on 19 August, his legal practitioner claimed that the applicant "should not be obliged to answer any further questions concerning the matters to be inquired into on the basis that those answers might tend to incriminate him." In the terminology of the Act, the legal practitioner was claiming the @xistence of a reasonable axcuse ror a refusal by the applicant to anawer further questions; see sub-sections 20(2)(b) and (4)(a) of

the Act. Section 32 of the Ack prescribes proceduras tao Ea

and need not be set out in full. For present purposes parts only nesd be set out and other parts can be summarised.

Under paragraph 32(1)(c):-

"32. (1) Where - ...

{c) a person claims to be entitled to refu to answer a question put to him, or produces a document or thing that he was required to produce, at a hearing betfo the Authority,

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the Authority shall decide as soon as practicable

whether in its opinion the claim is justified and notify the person of 1ts decision."

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Sub-sections (2) and (4) provide:-

"(2) If the person 1s dissatisfied with the decision, he may apply to the Federai Court for an order of review in respect of the decision. ...

tt) On an application for an order of review in respect ci a decision of the Authority under sub-section (1), the Federal Court may, ain its discretion, make an order -

(a) affirming the decision; or

(Bb) setting aside the decision."

The section contains detailed provisions relating iste documents. These need not be summarised. Sub-section 32(7)

provides: -

"(7) An order of the Federal Court under sub-section ,4) 18, subject to any appeal from that order, conclusive for the purposes of any other proceedings."

Sub-sectlion 3J2.\1ll: prescribes the yroceaures tc be followed in the making of applications under sub-section 32(2). The application 15 made in the manner prescribed by the Federal

Court Rules. The relevant rules are contained in 0.57.

Following the claim made by the legal practitioner for the applicant, the Authority, in contormity with sub-section 32(1)(c), proceeded to decide whether, in its opinion, the claim was justified. To that end, 1t heard submissions from the legal practitioner and from counsel assisting the Authority. The Authority then gave a decision

that the claim was not justified and notified the applicant

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of that decision. The Authority gave reasons for its decision. The basis of the decision was that the claim could not be based on a "blanket objection" and indicatad that there were many questions relevant to Che special

investigation which could be answered by the applicant

without the answers tending to incriminate the applicant.

The applicant sought to review that decision of the Authority but instead of proceeding undet 5.32 of bthe Act and

0.57 of the Federal Court Rulés, the apolicant commenced

proceedings unaer the aAdministcoativye Decisions sJudicial Review) Act 1377 and 0.54 of the Feaersl Court Rules. Upon

the Court drawing attention to this defect, counsel for the applicant sought leave to treat the application as if it had been brought under 5.32 of the Act and 0.57 of the Rules. Counsel for the Authority consented fo that course.

Accordingly, the Court gave the leave sought and proceeded as

if the application had been brought under 5.32 of the Act and

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0.57 of the Federal Court Rules.

The 1ssue caised by this application, although of

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importance, comes within narrow limits. It is whether a Claim based on sub-section 30(4),a) of the Act can be made successfully on a général basis with respect to all future

questions, described as a "blanket objection", or must a

claim be limited to a particular question or a particular

line of questions, the answers to any one of which might tend to incriminate the witness because the answer, together with

other material available, might tend to incriminate the

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witness. For present purposes, the fact that in sub-sections 30(2)(b) and (4)(a), vaferance 15 mada to "a question" is not

relevant since the singular includes the plural.

Theré 15 a genécal princisle of law, known as che privilege against self iuncrimination, that "no one 15 bound bo answer any question or produce any document if the answer or the document would have a tendancy to expose that person to the imposition of a civil penalty or to conviction for a crime"; see Cross on FEvidences, 3rd Australian Edition, at para. 13.11 and the following paragraphs. Statutes may abrogate that privilege, see for example Pynsboard Fty. Ltd. v. Trade Practices Commission (1983) 152 C.L.R. 328 and Sorby

v. Commonwealth of Australia (193835) 152 C.L.R.

7281. The

provisions of sub-sections 30(2)(b) and (4)(a) make it clear

that Parliament did net intend that the existence or

sub-section 30(11) would abrogate the privilege against self

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application 9 a claim bLasea on that

privilege with respect to refusing to answer a question

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during a hearing under 5.25 of the Act, In these circumstances, 1t is helpful to Look at those authorities which have discussed the application of the principle of law

based on that privilege.

The application of the principle was discussed in

Jackson v. Gamble £19837 1 V.R. 552 at pp.555-6 by Young C.J.

in a passage which was approved expressly by the Full Court;

see Gamble v. Jackson £19831 2 V.R. 334 at pp.335-5. The

relevant parts of that passage are set out:-

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"The practice followed when a person objects to answering a question upon the ground that the answer may tend to incriminate him was laid down in R. v. Boyes (1861), 1 B. & 35. 311; 121 E.R. 730 and in Re Reynolds (1882), 20 Ch. D. 294: see also Brebner v. Perry, C1961] 3S.A.5.R. 177, at pp. 180-1. A mece statement by the witness that his

answer might tend to incriminate him 15 not surficient. The court must be able to see for itself that there is reasonable ground to fear that the answer may have the stated effect. What it

will be necessary for a witness to establish in order to be allowed to claim the privilege will depend upon all the circumstances of the case. 50 where & question concerns conduct that 1s itself innocent, ana will only involve risk to a witness as a link in a chain of proof, he must satisry che Court by facts that will, in that avent, be outside the terms of the question, that the answer would, or might tend to, incriminate him: e.g. R. v. Cox and Railton (1284), 14 9.8.0. 153, at op. 175': Brebner v. Parry, supra, at p. 132. ...

There is another aspect to the question whether the Court is satisfied that there are reasonable grounds for apprehension. The Court must be satisfied that the objection is taken bona fide: see Brebner v. Perry, supra, at p. 182."

In the Full Court, Starke J., in a judgment agreed

y Crockett and Macxs JJ., after quoting a long passage

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the judgment of Young C.d. which included the

assages set cut above, said at p.336:-

"His Honour 5 statement or the le principles applicable appears to me with respect be impeccable. Questions of an incriminating nature may be of two kinds. The first is where the question itself reveals that the material sought is of a criminal and therefore incriminating nature. In such a case no doubt the officer would usually not have to produce any material to establish that he had a lawful excuse. The second is where the question is innocent on its face but seeks after material which may form a link in a chain of incriminating material. In such a case the applicant in my opinion must be able to point to material which indicates the incriminating character of the material. Such material of course

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need not be itself of an incriminating nature. It wlll usually be sufficient to show what it 1s the Crown alleges."

In my opinion, those principles should be applied in the present case. It is clear that the "nature of the privilege is one that does not entitle objection to be taken

to questioning"; see R. v. Magistrates' Court at Melbourne; Ex

parte Cross, Supreme Court of Victoria, Gobbo J., 10 March 1987, unreported. Nor 15 the privilege "a srivilege that enables objection to be taken to giving evidence at all or to

the asking of the question"; ibid. Each case must depend

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upon 1ts own facts. This is illustrated by reference ta Controlled Consultants Pty. Led. ve. Commissioner Tor Corporate Affairs (1393847 V.R.

137. In that case Marks J.,

after referring to what Young C.J. had said ain Jackson v.

Gamble, said at pp.1i51l-2:-

"The decision ners must rest on the application of the established principles ta aifferent facts. In my view, the facts here would, if nothing else appeared, dictate a different result. A requirement that the objecting party @stablish the court's ability to see for itself the risk, does not mean that it must do 50 solely from what that party says or produces. In my view the test is satisfied 1f the court 15 able to see the cisk from facts and circumstances of which 1f 15 at that point properly apprised. The test, in my view, 15 objective, to be appliad to what the court apprehends to be the risk to the party concerned from what it knows, whether it knows 1t from what the party himself or itself has said or produced or from other evidence."

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In the present case, a blanket objection has been taken. In reality, the claim made on behalf of the applicant is an objection to questioning, an objection to the answering of questions. From a reading of the transcript of the proceédings at the hearing by the Authority, it is clear that

the applicant had answered questions of a preliminary nature

only. No specific question had been asked which itself revealed that the material sought was "of a criminal and therefore incriminating nature." There was no material put

before the Authority which suggested that any linea of questions which, on 1ts face was unnocent, sought "material

which may form a link in a chain of incriminating material."

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Nor was the attention oF che Court drawn to any material which should have satisfied the Authority that there was a risk of self incrimination arising "from facts and circumstances of which it (the Authority) 1s at that point

properly apprised."

Counsel for the applicant sought to rely upon authorities which suggested that in an appropriate case, the privilege coulda be claimed successfully before any questions

were asked. He rererred to R. v. Rutledge; Ex parte Laidlaw

(1923) S.R.9. 284 and R. v. The Coroner; Ex parte Alexander

£19823 V.R.

731. In those cases, the Court was satisfied that any answer would tend to incriminate the witness. On the facts of the present case, there is no basis for a Similar finding here. In any event, if there 1s any conflict between those two cases and Gamble v. Jackson, I prefer to

apply the judgment of the Full Court of the Supreme Court of

Victoria.

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In the result, the applicant has failed to show any error on the part of the Authority in making its decision of 19 August 1987. The application should be dismissed and the decision of the Authority affirmed. The applicant should pay

the Authority's costs of the application.

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ATTACHMENT A

Title of Action

File Number :

Dates of Hearing :

Judgment Delivered

Counsei for Applicant

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Solicitors for Applicant Counsel for Respondent

Solicitor for Réspondent :

Signed . Sharm. £ Uta

Date 27 November 1597

C v. NATIONAL CRIME AUTHORITY

V. No. G@ 239 of 19237

13 and 20 October 1987

27 November 1987

Mr. J. Bleechmere

aw Orfices cf Ellinghaus Sindner Mr. S.F. Charles 9.C. with

Nid. Young

Australian Government Solicitor

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