SD v New South Wales Crime Commission [2013] HCATrans 210 (6 September 2013)

Last Updated: 10 September 2013

[2013] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S67 of 2013

B e t w e e n -

SD

Applicant

and

NEW SOUTH WALES CRIME COMMISSION

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 SEPTEMBER 2013, AT 11.52 AM

Copyright in the High Court of Australia

MR G.K. RICH: May it please the Court, I appear for the applicant. (instructed by Nyman Gibson Stewart)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MR P.J. ENGLISH, for the respondent. (instructed by NSW Crime Commission)

BELL J: Yes, Mr Rich.

MR RICH: May it please the Court. At page 33 of the application book commencing at line 40, your Honours will find the obligation imposed on the Commission by section 13(9) of the New South Wales Act to make a direction that evidence given before it:

shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies –

The word “specifies” denotes an explicit identification in the direction itself of the persons to whom the witness’ evidence may be published. The importance of specificity in the direction itself is underlined, in my submission, by what your Honours see at the bottom of page 33 of the application book, namely, the reference to the fact that it is an offence to publish information in contravention of a direction made under subsection (9). Furthermore, unless the persons to whom the witness’ evidence are specified, that is, to whom it may be published – are specified in the direction, the witness cannot know whether the Commission has made a direction in compliance with section 13(9).

Take the case of a witness, your Honours, who has a reasonable fear for their own personal safety if their evidence is disclosed to persons X and Y and assume that the Commission makes a direction of the kind that your Honours see on page 34 of the application book in paragraph 10. Your Honours will note the substance of a direction is that the evidence “shall not be published”, and then the critical words, “except in a manner and to such persons as the Commission” may specify. Now, when that direction is made the witness does not know whether that direction is or is not effective to safeguard their personal safety.

BELL J: Accepting that to be the case, at issue here is the refusal to answer a question and a statutory scheme that requires the witness to answer the question subject to the provisions which include 18B in relation to privilege - now, I just wondered, Mr Rich - I think it is the point really taken by the respondent at application book 81, paragraph 27 – your client was a person not charged with an offence at the time of the examination. Is that right?

MR RICH: That is correct, but it was accepted by all parties that he was a person who, in the words of the section, may be charged and therefore section 13(9) was engaged.

BELL J: For the moment, just how on your argument do you overcome the terms of the statute?

MR RICH: The way I overcome the terms of section 18B, your Honour – and I thank you for raising it – is that section 18B refers in terms to a hearing. It uses those words, that is, at a hearing the witness may not refuse to answer on certain grounds. Section 13 of the Act tells your Honours how a hearing is to be conducted. In other words, it is to be done in private, it is to be done in the presence if the applicant – sorry, if the witness wishes, of a lawyer, et cetera, and my submission to your Honours is that, yes, it is true section 18B says that self-incrimination is not a reason for refusing to answer, but it does so in contemplation that the questions are only being asked at a hearing where section 13 is complied with.

So, if it were the case, for example, that the Commission had refused to allow the witness to have a lawyer in attendance then, in my submission, section 18B would not oblige the witness to answer the question because the hearing at which such questions are required to be answered is not being conducted in accordance with law. I make the same submission about section 13(9). In other words, if the direction which has been given is not adequate to fulfil the statutory purpose of protecting the witness against prejudice to his or her fair trial, then the Act has not been complied with and section 18B does not require an answer to be given. Your Honours will be aware of course that the obligation imposed by section 18(2) carries within it the words “without reasonable excuse”.

GAGELER J: How does section 13(9), which is expressed in terms of a power, become a duty in the circumstances of this case?

MR RICH: Yes, your Honour, it becomes a duty in the particular – if your Honour is looking at page 33 again, your Honour will see at about line 41 that it becomes a duty. Your Honour will see the words:

and the Commission shall give such a direction if the failure to do so might prejudice . . . the fair trial of a person who has been or may be charged with an offence.

That is why I emphasise that, that this case is one where the power became a duty, an obligation which had arisen, and my submission to the Court is that the directions which are made in terms of containing within them an exception, the content of which is not apparent from the terms of the direction itself, that is, we do not know who is going to be the subject of the specification, is not one that complies with the statutory purpose. The witness in that circumstance is entitled, in my submission, to decline to answer the question until such time as a direction is made which is reasonably capable of protecting his or her right to a fair trial.

GAGELER J: Does the point come down to saying that there is insufficient specification for the purposes of section 13(9) by describing people in the manner that one sees at page 34?

MR RICH: With respect, your Honour, no. The point is one – the concern which I express is the words that your Honour sees at line 20:

except in such manner, and to such persons –

and if your Honour goes to page – just because the second direction is not fully set out there, if your Honour would kindly go to page 4 of the application book in the decision of the trial judge, your Honour will see at about line 46 the same words appear, that is:

except in such manner and to such persons as the Commission specifies –

It is true that there is then an ancillary or further direction given just further down the page, but the exception to which I take exception is contained in both directions. What it does is it reserves to the Commission the ability subsequent to this day to this examination, to, in the privacy of its own office, specify other people without the witness knowing about it and in circumstances where there is (a) no opportunity to be heard about it and - - -

GAGELER J: That is a large proposition, is it not, that there would be no opportunity to be heard.

MR RICH: Well, I do not mean by that that there should not be, but rather that what has been reserved by this direction is apparently a capacity to do this without the witness having any practicable ability to stop a specification from occurring which he or she would regard as prejudicial and, furthermore - - -

GAGELER J: That is surely a question of whether or not procedural fairness applies to a further exercise of this power.

MR RICH: Your Honour, my submission to the court below did involve - and his Honour Justice Basten dealt with it briefly by doubting that procedural fairness would apply, but the difficulty which the witness is faced with, as your Honour will appreciate, is that the witness is there sitting in the room at the time being asked questions which the Commission says he or she is obliged to answer. The only thing they know is that the direction which has been made contains this exception. The only question is whether, that being the position, it is reasonable for the witness to say, “I am not going to answer a question” - and I will come to the particular questions in a moment – “which could prejudice my fair trial until you give me a direction which does not contain that exception”. The question then of whether there should or should not be procedural fairness given after the event is an important one but - - -

GAGELER J: That is effectively saying, “Until you give me an irrevocable direction - - -

MR RICH: Well, with respect, your Honour, no. What it is saying is, “Please give me a direction that complies with the Act, that is, one which specifies the persons to whom my evidence may be published”.

GAGELER J: That cannot be changed later?

MR RICH: No, my submission to your Honour would be that the question of whether it can be changed is one – if you actually want to change the direction, then the Commission should give notice and an opportunity to be heard so that the witness can then go to court if they wish and oppose the alteration. But the problem with this direction is that, rightly or wrongly, it purports to give the Commission the power without needing to vary the direction itself to specify other people, identity unknown.

BELL J: The concern here was of publication to the DPP or to the police. Is that so?

MR RICH: That is correct, your Honour.

BELL J: In fact, in the proceedings before the Commission, the Commissioner is recorded – this is at application book 35, paragraph 14 – as noting that the:

information could not be published to the DPP, or to police or other investigating officers who were not members of staff of the Commission, absent a further direction.

That was the understanding at the point that this issue arose. Is that so?

MR RICH: There was a debate and the Commissioner said words to the effect that he thought that it is probably right that until there was a variation or some other legal process occurs, that there cannot be a dissemination. But the point which I make is that the witness is in a situation where at the time he is being asked the questions there is no prohibition which would bite in terms of not being able to be subject to a specification by the Commission in private and that variation, in my submission, would be in accordance with the terms of this direction.

In other words, if the Court was faced with a case where a person was charged with an offence for having published evidence contrary to this direction and it emerged that that person had received an email from a superior at the Commission saying “Please send the evidence to the DPP”, then that person would not have breached the direction because the direction permits publication to persons whom the Commission specifies. That is the difficulty with the idea that this direction in fact prohibits publication.

If your Honours please, at page 55 of the application book, his Honour Justice Barrett rejected the argument and identified in paragraph 72 what he described as the determinative point, and it was one of timing. The determinative point was said to be that at the time the applicant was asked the questions, no occasion had arisen for the Commission to make a direction because the evidence that he might give did not then exist, and his Honour said it was not capable of being assessed in the necessary way.

Now, what his Honour meant by “the necessary way” appears on page 54 in paragraphs 67 and 68 of the application book. Your Honours will see from the explication of the reasoning in paragraph 68 that Justice Barrett proceeded on the basis that only what he described as “negative” answers are likely to prejudice the applicant’s fair trial and that part of the Crime Commission’s role is to decide which answers that a witness gives are likely to be prejudicial to his or her fair trial.

So that, if your Honours go to page 5 of the application book, paragraph 15, and have a look at the actual questions which are in issue in this case, and I just focus on the first one – I am sorry, I think I said paragraph 15, it is paragraph 13 at line 30 - your Honours see that question and apparently, according to his Honour Justice Barrett’s reasoning, if the answer was to the effect that he was at the place where the offence occurred, then that evidence would not be given to the DPP, but if his answer was that he was at home with his mother, then it would be because it is not a negative answer apparently. If he said he did not remember, then apparently it – the Crime Commission officers make a judgment as to whether that evidence would or would not be prejudicial to the witness at his trial.

Now, that approach was also adopted, if your Honours would kindly go to page 38, by his Honour Justice Basten with whom Justice Macfarlan agreed, in paragraph 21. Your Honours will see that that his Honour refers to in about line 26:

Usually it will not be possible to make such an assessment without knowing the content of the evidence.

Then that leads, on page 39, paragraph 23, to the proposition that:

Absent any obligation to give a non-publication direction in relation to evidence not yet given . . . the appeal must be dismissed.

Now, in my submission, the reasoning of the entire court on that point cannot stand because the notion of a fair trial, and those are the words used in section 13(9), has to be understood as a fair trial in an accusatory system of justice.

GAGELER J: Now, your problem is with the first sentence of paragraph 24, is it not?

MR RICH: Well, that sentence, in my submission, cannot be right in view of what his Honour then decides is the proper construction of section 13(9) and your Honours will see that construction in paragraph 29, in the last sentence of paragraph 29, that is that section 13(9) does not have a purpose of limiting disclosure of dissemination to the prosecution. Then his Honour continues over the page on page 42, paragraph 30, last sentence, that subsection (9) has nothing to say about providing information or evidence to the DPP.

Now, if that is right, then it cannot be the case that the existing direction precludes disclosure to the police and the DPP, or that there is any constraint at all if it be necessary on the Commission in varying its direction or making a new direction that the documents be given to the DPP, and that construction is one which warrants the attention of this Court, in my submission, it being not – sorry.

BELL J: Mr Rich, the Commission comes under an obligation under 13(9) in the event that publication might prejudice a fair trial of a person.

MR RICH: Yes, your Honour.

BELL J: We are at an anterior stage with a person who has not been charged with an offence and who is under the statutory scheme required to answer questions and as to self-incrimination has the protection, provided the objection is taken of the statutory scheme. But taking us down the road of what might happen if there is an inadequate 13(9) direction may be not to really focus on a difficulty that your application faces.

MR RICH: Well, your Honours, this Court is being confronted right now with a number of cases in which material of this character, that is evidence obtained at examinations like this, have been provided to prosecutors, to police, and the court is then asked to, as it were, unscramble the egg after the event and it is exceedingly difficult to do so. Insisting upon adequate directions being given and adhered to and giving the applicant – persons in the position of the applicant the right to refuse to answer if they are not would avoid that problem.

BELL J: Thank you, Mr Rich.

MR RICH: If your Honours please.

BELL J: Yes, thank you, we do not need to hear from you, Ms Abraham.

There are insufficient prospects that the orders of the Court of Appeal would be set aside were special leave to be granted. Special leave is refused with costs.

AT 12.14 PM THE MATTER WAS CONCLUDED