Case: ABC v Sage [2009] FCA 170
Outcome: discussed
v Sage [2009] FCA 170 ( Sage ) concerned an attack, inter alia, on the legality of an examination summons under s 28 of the ACC Act. The summons contained a note that the applicant "will not be examined in relation to charges currently before the courts". At one point in the examination, that applicant objected to answering a question because it would reveal an element of his intended defence to the serious criminal charges laid against him. The examiner ruled that he must answer the question. The challenge relevant to the present matter was that, by obliging that applicant to answer the question objected to, the examination to that extent would tend to interfere in the administration of justice and was in contempt of court. In my view, the outcome in Sage turned upon its particular facts. Relevantly, that applicant contended that by answering the question: (1) he would be admitting to minor criminal conduct which (he said) was what he was engaged in when he is alleged to have been committing the much more serious criminal charges against him; and (2) he would be identifying a potential witness in his defence, and in addition that witness may then decline to give evidence if he learns of the disclosure of his identity to the authorities. Jessup J said at [21] that the applicant thereby supposed, or premised, that either or both of the prosecuting authorities in the criminal proceeding and the putative witness would become aware of the evidence before the examiner. In response, counsel for the examiner firstly relied upon the fact that the applicant had invoked the privilege against self-incrimination under s 30(4)(c) so that the use immunity under s 30(5) was enlivened, and secondly, relied upon the several confidentiality orders made by the examiner under s 25A(9), as well as the examiner having confined the persons present at the examination under s 25A(3). One direction made by the examiner under s 25A(9) was to the effect that the evidence given not be made available to the prosecuting authorities responsible for presenting the serious criminal charges against the applicant before the completion and final determination of those charges. The examiner also adduced evidence that the ACC had imposed tight administrative restrictions on those having access to the evidence, to give effect to the examiner's direction. Jessup J at [29] accepted that the effect of the directions made by the examiner under s 25A(9) and their implementation was, as a matter of fact, to eliminate any risk of interference with the administration of justice by the applicant being required to answer the question objected to. His Honour regarded s 25A(12) (set out at paragraph [24] above) as existing to serve the administration of justice, rather than to impede it by a Court prejudicing a fair trial by giving such a direction. 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 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.