Case: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188
Outcome: discussed
Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ( Hammond ), the issue arose as to the obligation of a witness before a Royal Commission to answer questions about a matter in relation to which he had been charged. Section 16(b) of the Evidence Act 1958 (Vic) made it an offence to refuse to answer any question on the subject matter of the inquiry. Section 29 of that Act removed the privilege against self-incrimination, but (like s 30(5) of the ACC Act) s 30 of that Act then prohibited the use of such answers in any civil or criminal proceedings against the person. Sections 6 and 6DD of the Royal Commissions Act 1902 (Cth) also apparently contained terms to much the same effect, as was later decided in Sorby v Commonwealth [1983] HCA 10 ; (1983) 152 CLR 281. In Hammond , Gibbs CJ at 198 said: Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. ... [T]he fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence. See also per Murphy J at 201. Both their Honours expressed their conclusion as following from the fact that the answers may tend to prejudice an accused in the defence of the criminal charge. Brennan J reached the same conclusion, but on a somewhat wider basis. His Honour said at 202-3: It is sufficient for present purposes to appreciate that it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged. Deane J at 206 reached the same conclusion, based also upon the obligation to answer such questions as being an improper interference with the due administration of justice in the proceedings in the criminal court. Having reached that view, his Honour at 207 addressed a contention on behalf of the Commonwealth that it had not been shown that the questions asked by the Royal Commission as to the plaintiff's involvement in the matters the subject of the criminal proceedings involved any substantial risk of serious injustice or serious prejudice to the plaintiff. His Honour rejected that contention because, he said, the fact that the proceedings were conducted in parallel with the criminal proceedings, that the Commonwealth was the prosecuting authority, that the answers were compulsory, and that the plaintiff would commit an offence by not answering such questions, were such as to "constitute injustice and prejudice to the plaintiff". The only point of clear distinction is that, in the present instance, the criminal prosecution is being conducted by the State of South Australia or one of its officers. I do not regard that as a relevant distinction because s 12(1) of the ACC Act contemplates the provision of certain information to the South Australia Police for the purposes of a prosecution. Senior counsel for the ACC submitted that the decision in Hammond is distinguishable from the present circumstances, and secondly and alternatively, that the ACC Act has by necessary implication qualified the principle established in that case, so that the applicant was obliged to answer questions directly relevant to the charge in any event. She also put the contention that, by reason of the remarks of Dawson J in Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 ( Hamilton ) at 509, Hammond should be taken as an authority confined as narrowly as possible to its particular facts. The last mentioned submission was put, appropriately, cautiously. It is correct that, in Hamilton , Dawson J at 508-9 gave reasons why the decision in Hammond should not apply in respect of an examination of a director of a company under s 541(3) of the Companies Code (NSW) (with similar provisions now in s 596B of the Corporations Act 2001 (Cth)). However, the High Court did not there indicate that Hammond should not be followed. It is necessary that I should do so. Toohey J in Hamilton at 515 referred to the circumstance in Hammond that the questions were designed to establish that the plaintiff was guilty of the offence charged. See also the remarks of Toohey J in Huston v Costigan (1982) 45 ALR 559 at 563. The 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. On the same day that the applicants were discharged, namely 5 March 2004, an examiner of the ACC issued summonses under s 28 of the ACC Act requiring the applicants to be examined. The Commonwealth Director of Public Prosecutions later informed the ACC and the applicants that there was no intention to institute further proceedings against the applicants. As the applicants were not the subject of concurrent criminal charges, Merkel J held that the principle explained in Hammond did not apply. The facts of the charges remaining against persons other than the applicants, or that the charges had been brought against the applicants, did not, as a matter of statutory construction, bring to an end the compulsive investigatory power. Foster J at 569 emphasised that a Court has a right and an obligation to "protect the integrity of its operations and to prevent interference with its administration of justice". His Honour then considered the decision in Hammond . As to the reasons of Deane J in Hammond , Foster J at 571 made the same point as noted above at [39]. His Honour then agreed with the joint judgment of Hill and Lindgren JJ that the examination should not be permitted to inquire into matters directly the subject of the criminal charges (at 576). No question there arose as to whether, in fact, the proposed questioning would expose the respondent to a risk of self-incrimination and, in so doing, could interfere with the administration of justice. The existence of that risk was conceded: see per Hill and Lindgren JJ at 584. Furthermore, as noted by Foster J at 568, there was no undertaking proffered that the material obtained in the investigation would not be made available to the prosecution. In other words, the second matter raised by the ACC set out in [20] above did not arise in that case. 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 . As was explained in Hammond , the public interest in the administration of justice is a central feature of our society. It is not a principle to be lightly qualified. Other provisions of the ACC Act, as noted, recognise that principle: ss 25A(9) and 29A(2). I do not consider that the obligation of a person to answer questions at an examination under s 30(2)(b), in the overall context of the ACC Act, impliedly qualifies that principle. There is an abrogation of the privilege against self-incrimination in s 30(4) and (5), which is described by Hill and Lindgren JJ in De Vonk at 579 as one of the "fundamental rights and freedoms". It is limited to its terms. It does not impliedly extend to the wider principle recognised, inter alia, in Hammond . Indeed, the careful expression of its terms indicates to the contrary. Nor does s 25A(9), in the context of the ACC Act, including s 30, necessarily imply that the principle recognised in Hammond has been abrogated. Its function, as evidenced by its terms, is directed generally to preventing injustice in a range of circumstances. It is, moreover, not an absolute power to prohibit or restrict the publication of evidence. If it were, that may frustrate, in respect of evidence subject to such an order, the purposes of the special investigation or operation because information relevant to it would not be available to the head of the investigation or operation, or be subject to the CEO's overall responsibilities under the ACC Act, including s 12(1). I turn to the alternative proposition of the ACC referred to in [20] above. 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. However, no such indication or undertaking has been proffered in this matter. The contrary is the case. Answers directly relevant to the charge, once procured and even if they are not admissible in evidence against the applicant by reason of the "use immunity" provided by s 30(5), may nevertheless provide information which may adversely affect the opportunity of the applicant to have a fair trial in relation to that charge. They may disclose details of the defence to the charge, so that the prosecutor may be able to anticipate and adduce evidence which would not otherwise have been available and procured to assist in establishing guilt. They may disclose other avenues of investigation to assist in proving guilt that would not otherwise have been available to the prosecution. They may disclose a source of evidence which can contradict the foreshadowed defence. They may disclose material, or lead to the identification of material, to cross-examine the applicant, in the event that he gives evidence. In my view, it is appropriate to apply the description of Deane J in Hammond referred to in [39] above to the present circumstances. The answers are given under compulsion, with the threat of a significant criminal sanction for failing to answer them. They are given on matters which directly relate to the charge. And they may find their way to the prosecuting authority for use in a way which may adversely affect the defence to the charge.