Case: Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251
Outcome: discussed
decision in Hammond has been considered in other decisions of this Court where there has been an examination conducted under the ACC Act which has been sought to be constrained. A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ( Boulton ) concerned a challenge similar to the present one, but where no criminal charge had in fact been laid. Weinberg J regarded that as a significant point of difference from the facts considered in Hammond . His Honour was not satisfied that the applicant in that case was either charged with, or about to be charged with, a criminal offence. Nevertheless, his Honour agreed with the observations of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251 ( Mansfield ) at 263, [65] that the ACC Act, by s 30 and in particular s 30(5), did not by necessary implication authorise the conducting of an examination in contempt of court. That decision was upheld by the Full Court: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420 (Beaumont, Dowsett and Kenny JJ), but it appears that the principal issue on the appeal was whether the privilege against self-incrimination had been abrogated by s 30 of the ACC Act: see at 430. Mansfield concerned the extent to which that applicant could be examined under ss 28 and 30 of the ACC Act on matters directly relevant to "confiscation" proceedings against him under the Criminal Property Confiscation Act 2000 (WA). (The examiner had ruled that questions directly relevant to certain criminal charges also laid against the applicant would not be the subject of questions at the examination. That position is clearly different from that now taken by the examiner in this matter.) The "use immunity" available under ss 30(4) and (5) of the ACC Act, once the privilege against self-incrimination was invoked, expressly did not extend to "confiscation proceedings": see s 30(5)(c). Carr J concluded at 264, [73] that the examiner was not entitled to question the applicant on matters directly relevant to the confiscation proceedings where such questions might constitute a real or substantial risk of interference with the course of justice, in that case, the confiscation proceedings. However, his Honour declined to grant an injunction because he anticipated that the examiner, having had his ruling corrected, would comply with the Court's decision. He preserved liberty to apply in the event that the examiner's further questions might interfere with the administration of justice in the confiscation proceedings. In reaching that conclusion, Carr J at 262-3, [59]-[65] held that the ACC Act and, in particular s 30, did not by necessary implication authorise interference with the administration of justice. I respectfully agree with and adopt his Honour's reasons. It does not appear that the second issue now raised by the ACC as described at [20] above was considered in any detail in that case. Counsel for the ACC in that case argued that evidence given at the examination could be used in the confiscation proceedings, but is not noted as arguing that such evidence might not impair the administration of justice. Carr J at 264-5, [81] said: But I shall make an order, pursuant to s 16(1)(b) of the ADJR Act, referring the matter, that is, [the examiner's] ruling that the examination may proceed notwithstanding that the applicant's answers may be relevant to the Confiscation proceedings, for further consideration. The purpose of referring that matter for further consideration is not necessarily to preclude the applicant being required to answer such questions, but to ensure that the applicant's rights to legal professional privilege are protected and also to ensure that there is no interference with the administration of justice in the Confiscation proceedings. His Honour thereby appears deliberately to have left open that issue. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield . In Mansfield , at 262-3 [61]-[64], Carr J remarked on the curiosity that s 30(5)(c) carves out confiscation proceedings from the "use immunity", even though such proceedings may not be covered by the use immunity under s 30(5)(a) or (b). I agree with his Honour that that does not evidence a legislative intention to compel the answering of questions under s 30(2) where there is a real risk that such questions, or the answers, would interfere with the administration of justice. Section 30(5) generally explains or limits the use of certain answers given during an examination, predicated upon the making of a claim under s 30(4)(c) that the answers may tend to incriminate the person being examined. Its scope of operation is determined in that light. That is confirmed by the other carve out in s 30(5)(d)(i) which provides that use immunity is not available if the questions are answered falsely. As noted above, that question of fact did not need to be the subject of a separate determination in De Vonk or in Mansfield . Sage appears to have been determined on that question of fact. In Hammond , the risk was apparent from the fact that it was proposed that the investigating officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided, directly relevant to the then outstanding criminal charges. I do not consider that, having rejected the primary contention of the ACC, that there is a further discretion to be exercised along the lines contended for by the ACC, but in any event, in the present circumstances, I would not exercise any such discretion in favour of declining to grant the injunctive relief proposed. Unlike the circumstances in De Vonk and Mansfield , the factual material indicates clearly the intention of the examiner to ask questions directly relevant to the charge whilst the charge is outstanding against the applicant. No undertaking not to do so has been proffered. Whilst there is some risk of further debate as to whether a particular question or questions may be directly relevant to the charge, it is to be noted that the present application arose only where a question which required, in answer, material directly relevant to the charge was raised. An injunction restraining the examiner from asking questions directly relevant to the charge does not generally impede the special investigation. Nor does it, on the evidence, impede the examination except to a limited extent. There is nothing to indicate that it would significantly impair the special investigation. The time of the hearing of the charge is not disclosed in the material. If the charge is heard, either by plea or trial, the applicant may be further examined in the course of the special investigation to answer questions directly relating to the charge.