Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: SD v New South Wales Crime Commission [2013] NSWCA 48
• Hearing dates: 7 February 2013
• Decision date: 08 March 2013
• Before: Basten JA at [1]; Macfarlan JA at [57]; Barrett JA at [58]

Decision

(1) Order that publication of the name, and disclosure of other information tending to reveal the identity, of the applicant (who may be referred to by the letters SD) be prohibited.

(2) Grant the applicant leave to appeal.

(3) Direct that the amended draft notice of appeal filed on 12 December 2012 stand as the notice of appeal.

(4) Dismiss the appeal.

(5) Order the appellant to pay the respondent's costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - powers of the New South Wales Crime Commission - obligation of person giving evidence to answer questions - whether direction as to non-publication adequate - whether "reasonable excuse" for not answering questions; CRIMINAL LAW - appeal - applicant questioned at a hearing before the New South Wales Crime Commission - whether applicant had a "reasonable excuse" not to answer questions - non-publication direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) - direction precluded publication to the police or the Director of Public Prosecutions - power to vary direction - whether direction required to prevent prejudice to fair trial; WORDS AND PHRASES - "reasonable excuse" - New South Wales Crime Commission Act 1985 (NSW), s 18(2)
• Legislation Cited: Australian Crime Commission Act 2002 (Cth), ss 12, 25A, 30, 59; Court Suppression and Non-publication Orders Act 2010 (NSW), s 7; Crime Commission Act 2012 (NSW), s 45; Director of Public Prosecutions Act 1986 (NSW), s 7; New South Wales Crime Commission Act 1985 (NSW), ss 3, 3A, 5, 6, 7, 8, 13, 15A, 18, 18A, 18B, 19, 27A, 28, 29, 29A, 32; New South Wales Crime Commission Amendment Act 1996 (NSW); Supreme Court Act 1970 (NSW), s 101
• Cases Cited: Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83; Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258; Dalton v New South Wales Crime Commission [2006] HCA 17; 80 ALJR 860; Gangemi v Australian Securities and Investments Commission [2003] FCA 494; 129 FCR 284; Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423; Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188; Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408; National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29; 156 CLR 296; R v CB; MP v R [2011] NSWCCA 264; R v Seller; R v McCarthy [2013] NSWCCA 42; Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281; Taikato v The Queen [1996] HCA 28; 186 CLR 454; Z v New South Wales Crime Commission [2007] HCA 7; 231 CLR 75
• Category: Principal judgment
• Parties: SD (Applicant); New South Wales Crime Commission (Respondent)
• Representation: Counsel: Mr G K J Rich (Applicant); Mr I D Temby QC/Mr P J English (Respondent); Solicitors: Nyman Gibson Stewart (Applicant); NSW Crime Commission (Respondent)
• File Number(s): CA 2012/329433

Decision under appeal

• Jurisdiction: 9111
• Citation: SD v NSW Crime Commission [2012] NSWSC 1642
• Date of Decision: 2012-10-18 00:00:00
• Before: Adamson J
• File Number(s): 2012/255766

Judgment

1 BASTEN JA: In July 2012 the applicant was required to appear before the New South Wales Crime Commission ("the Commission"). He appeared at a hearing conducted on 3, 6 and 15 August 2012. He was questioned as to his knowledge of two shooting incidents. On 15 August he declined to answer two questions on the ground that in respect of each he had a reasonable excuse. The excuse was, in broad terms, that the Commission declined to make what the applicant considered an adequate non-publication order in respect of any evidence he was to give. The Commission rejected his refusal as unjustified, a decision from which he appealed to the Supreme Court. On 18 October 2012 the primary judge, Adamson J, affirmed the decision of the Commission and dismissed the appeal: SD v NSW Crime Commission [2012] NSWSC 1642. The applicant has sought leave to appeal from that judgment.

2 The case at trial proceeded on the basis of a statement of agreed facts which, the parties agreed, did not attract any obligation of confidentiality, other than with respect to the name of the applicant. In accordance with the non-publication order made by the Commission, which was not varied for the purposes of these proceedings, the applicant will not be identified. To regularise this course, the Court should make an order prohibiting publication of the name, and disclosure of other information tending to reveal the identity, of the applicant (who may be referred to by the letters SD). The order is made pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground that it is necessary to prevent prejudice to the proper administration of justice, which would occur were there to be contravention of the non-publication order made by the Commission, and to avoid destruction of the confidentiality which the proceedings are designed to protect.

3 The applicant filed both a summons seeking leave to appeal and a document entitled "Amended Draft Notice of Appeal". The applicant required leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(r). Rather than strike out the notice of appeal as incompetent, the preferable course, given the potential importance of the issues sought to be raised, is to grant leave and treat the filed notice of appeal as a document commencing the appeal. Nevertheless, for reasons explained below, on several independent bases the challenge to the decision of the trial judge fails and the appeal must be dismissed.

4 It is unnecessary to refer at this stage to the underlying facts other than to note that the inquiry related to two occasions on which shots were fired at a house and a vehicle in a western suburb of Sydney. In respect of the first incident, the applicant was asked where he was on the evening of the incident. In respect of the second incident, the interrogator noted that the Commission had information that he and two other named persons were seen in a vehicle outside the house and that two of the occupants of the vehicle had discharged a number of shots into the house. He was asked, "What do you say to that?"

Statutory scheme

5 The New South Wales Crime Commission Act 1985 (NSW) as in force at the date of the hearing (since repealed and replaced by the Crime Commission Act 2012 (NSW)) ("the 2012 Act") provided that a witness summoned to appear before the Commission at a hearing was not entitled to refuse to answer a question "without reasonable excuse". That appeared from s 18(2), which provided as follows:

"18 Failure of witnesses to attend and answer questions etc

...

(2) A person appearing as a witness at a hearing before the Commission shall not, without reasonable excuse or except as provided by section 18A or 18B:

(a) when required pursuant to section 16 either to take an oath or make an affirmation-refuse or fail to comply with the requirement,

(b) refuse or fail to answer a question that the person is required to answer by the member presiding at the hearing, or

(c) refuse or fail to produce a document or thing that the person was required to produce by a summons under this Act served as prescribed."

6 Section 18A provided an exception for members of the clergy with respect to religious confessions. Section 18B was, so far as presently relevant, in the following terms:

"18B Privilege concerning answers and documents

(1) A witness summoned to attend or appearing before the Commission at a hearing is not (except as provided by section 18A) excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

(2) An answer made, or document or thing produced, by a witness at a hearing before the Commission is not (except as otherwise provided in this section) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.

(3) Nothing in this section makes inadmissible:

...

(b) any answer... in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer... irrespective of the provisions of subsection (1)..." .

7 To attract the immunity from use of any answer given, the witness must object: s 18B(3)(b). Although s 18B(1) appears to be comprehensive in its exclusion of grounds of privilege, there is separate provision in respect of client legal privilege in s 18B(4). Such privilege is protected, absent waiver by the person enjoying the privilege.

8 The "use immunity" identified in s 18B(2) is restricted to inadmissibility in evidence. It does not prevent the answers being used as a basis for further investigation, either by the Commission or by police who are provided with the evidence. The protection given does not extend to what has been described as "derivative use immunity". Nevertheless, there are other constraints on the use that can be made of information supplied at a hearing before the Commission. Thus, a hearing is to be held in private and the Commission has control over the persons who may be present during the hearing: s 13(5)-(7). It is an offence for any member of the staff of the Commission to divulge or communicate any information acquired in the course of exercising functions under the Act, "except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act": s 29(2). Of central importance to the applicant's submissions were the terms of s 13(9):

"13 Hearings

...

(9) The Commission may direct that:

(a) any evidence given before it,

...

(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d) the fact that any person has given or may be about to give evidence at a hearing,

shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence."

9 This last provision (now s 45 of the 2012 Act) was the basis for a direction given in the present case. It is an offence to publish protected information in contravention of a direction under sub-s (9): s 13(12).

Applicant's contentions

10 At the heart of the applicant's case lay two directions under s 13(9), given by the Commissioner. On 6 August 2012, a direction was made in the following terms:

"The Commission directs that any evidence given by this witness or tendered or produced in the presence of this witness or any information that might enable this witness to be identified as a person who has given evidence before the Commission shall not be published except in a manner and to such persons as the Commission may specify."

11 On 15 August the Commissioner gave a further direction, in two parts. The first part was to the same effect as the direction given on 6 August: it concluded with the words "shall not be published except in such manner and to such persons as the Commission specifies". The second part was in the following terms:

"I, ancillary to the ... direction just given, I [sic] further direct that the following classes of persons are specified as persons to whom the contents of this hearing and the identity of the witness may be published:

(a) [the applicant's solicitor];

(b) [the applicant] himself;

(c) the persons appointed to assist the Commission in this hearing and who are present in the hearing room, of whom there are three;

(d) myself;

(e) such lawyers of the Commission employed by the Commission who have carriage of matters relating to this hearing;

(f) those persons who are monitoring the audio/visual recording of the Commission and are charged with the responsibility of typing any transcript that is required of it."

12 Perhaps from an abundance of caution, the Commissioner appeared to combine a direction under s 13(5) as to the persons who might be present during the hearing, and a direction under s 13(9) as to publication of evidence given during a hearing.

13 By bringing proceedings in the Supreme Court, the applicant and his solicitor might be thought to have contravened the direction by identifying the applicant as a person who had given evidence before the Commission. However, the proper construction, accepted by the parties, was that, to the extent necessary for a person to exercise his or her right of appeal to the Supreme Court under s 19 of the Crime Commission Act, there was an implied statutory exemption to the direction. In other words, the direction could not prevent, or impair or detract from the exercise of the statutory right of appeal.

14 The applicant's submission to the Commission was that the direction did not, but should, expressly state that his evidence would not be published to the New South Wales Police or the Director of Public Prosecutions ("the DPP"). In the course of a discussion, recorded in the agreed facts, between the Commissioner and the applicant's solicitor, the Commissioner noted 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. It was unclear why the applicant's solicitor sought an additional direction and why the Commissioner was unwilling to give it. The absence of such a statement, however, formed the basis of the applicant's refusal to answer the questions, which precipitated these proceedings.

15 According to the primary judge, the applicant submitted before her "that unless an irrevocable non-publication order was made preventing the Commission from disclosing his answers to the NSW Police and the DPP, his right to a fair trial would be irremediably prejudiced": at [32]. In the course of argument on appeal, the Court raised the possibility that there might be no power to vary a direction in circumstances where the direction was given prior to the evidence being given, so that any evidence would be given in reliance on the scope of the direction. Whether counsel for the applicant adopted that approach was not entirely clear. However, it is as well to deal with it as a form of irrevocability.

Applicant's case on appeal

(a) reasonable excuse

16 In order to avoid the obligation to answer in s 18(2), the applicant sought to establish a "reasonable excuse" for refusing to answer, being the absence of an order of the Commission expressly preventing the answers being provided either to police officers investigating criminal offences for which he might be charged, or to the DPP if charges were to be laid. He needed to establish that any future disclosure to those bodies might prejudice a fair trial. Those propositions require an understanding of the scope of "reasonable excuse" in the context of the Crime Commission Act and of the steps which might prejudice the fair trial of a person charged with an offence.

17 It is convenient to start with the concept of "reasonable excuse". The applicant submitted that the concept was broad enough to cover "no more or less than an excuse which would be accepted by a reasonable person": Taikato v The Queen [1996] HCA 28; 186 CLR 454 at 470 (Dawson J). However, it is also important to recognise that the term appears in many statutes and reported decisions but "decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of 'reasonable excuse' is an exception": Taikato at 464 (Brennan CJ, Toohey, McHugh and Gummow JJ); Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83 at [17]. The applicant's submissions appeared to be on stronger ground in relying on the reasoning of this Court in Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423, particularly at 435 in the judgment of Kirby P (with whom Meagher JA and O'Keefe AJA agreed). However, the analysis in Ganin is of limited assistance because the scheme of the legislation was quite different prior to the New South Wales Crime Commission Amendment Act 1996 (NSW), which removed the critical provisions in s 18 upon which Ganin relied and introduced a new s 18B, to which attention must be now directed.

18 The introduction of s 18B(1) drastically circumscribed the circumstances in which a witness is excused from answering questions. A witness cannot invoke any ground of "privilege", "duty of secrecy" or "other restriction on disclosure": if that were not sufficiently comprehensive, it extends further to "any other ground". It must be the breadth of the last phrase which was relied upon by the applicant, as he did not (and could not) assert any privilege or other legal entitlement to refuse to answer questions. Rather, the basis of his refusal was an asserted concern to obtain a fair trial, were he to be charged with an offence. Although the argument was not clearly developed, it may have implied that the removal of "any other ground" for refusing to answer a question was directed to the nature of the question and the answer to be given, rather than the use which might be made of the evidence subsequently. Were it otherwise, s 18B(1) would effectively remove any scope for the existence of a "reasonable excuse" under s 18(2) for not answering a question. Both sections must be given work and read harmoniously, if possible.

19 Given the scope of the submissions before this Court, it is inappropriate to elaborate further on the meaning of the phrase "reasonable excuse" in the present statutory context. It is sufficient to deal with the justification proffered by the applicant for refusing to answer the questions. That justification was inadequate, and thus did not constitute a "reasonable excuse" for the following reasons.

(b) pre-evidence protection

20 It is logical to address first the concept of an "irrevocable" direction, to be given before answering questions. The applicant's primary submission was that, although the Commissioner might have power to vary the direction given, he could not do so without notice to the applicant: Tcpt, 07/02/13, p 3(30)-(35). Authority for that proposition was said to be found in Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408. That approach appeared to assume that the precise terms of the original direction were critical. Thus, if they incorporated, as they appeared to do, a power to make further exceptions in the future, the applicant may have feared he would lose the opportunity to oppose any further exceptions. In less absolute terms, he may have thought that to give evidence in the knowledge that there might be further exceptions could diminish the weight of any subsequent objection to a further exception. The precise concern was not clearly articulated.

21 Any suggestion that the Commission was obliged to make a non-publication order before the evidence was given should be rejected. No doubt it was open to the Commission to give such a direction (as it did), but the existence and terms of the direction depended on the Commission's assessment, relevantly for present purposes, of whether publication in a particular manner of particular evidence might prejudice the fair trial of a person. Usually it will not be possible to make such an assessment without knowing the content of the evidence. Although the applicant may have known the answers to the questions he was asked, the Commission is not obliged to give a direction by speculating as to what those answers may be. If a direction were given in advance of the evidence, putting to one side the question of notice to the applicant, it must be capable of variation to permit the Commission to fulfil its statutory functions: as a general rule, the Commission cannot by conduct fetter its powers and obligations to investigate matters referred by the Management Committee.

22 Nevertheless, the applicant's position with respect to s 13(9) is contradictory. He relies upon the obligation cast on the Commission by s 13(9) to give a direction if the failure to do so might prejudice the fair trial of a person. He then expresses a concern that the Commission may have a power to vary or revoke any such direction. Assuming such a power to exist (as I think it must) it would be inconsistent with the legislative scheme to uphold a power which permitted variation or revocation with the consequence that there might be prejudice to a fair trial. The implied power to vary or revoke must be subject to the same constraints as the original power. In other words, the direction is in a sense "irrevocable" for so long as the Commission is satisfied that the direction is necessary, because its absence might prejudice a fair trial.

23 Absent any obligation to give a non-publication direction in relation to evidence not yet given, the failure to give a direction cannot, in the context of this legislation, constitute a reasonable excuse for not answering questions. For that reason alone the appeal must be dismissed.

24 In any event, the applicant presently enjoys the protection he seeks. No question of varying the direction, for example by expanding the persons or bodies to whom evidence may be released, has yet arisen. That provides a further reason for rejecting the appeal. It also renders moot the applicant's submission that Johns v Australian Securities Commission entitles him to notice and an opportunity to be heard in opposition to any variation. However, the correctness of the applicant's invocation of that authority should not be assumed. Johns held that where the Australian Securities Commission ("the ASC") had examined a director of a company (Mr Johns), the activities of which were the subject of a Royal Commission, transcripts of the examination should not have been released to the Royal Commission in a public hearing, without Mr Johns having an opportunity to oppose that course. There were, potentially, two issues to be resolved with respect to disclosure. The first was whether Mr Johns was entitled to be heard before the ASC disclosed the material to the Royal Commission; the second was whether he was entitled to be heard only with respect to a disclosure which permitted the Royal Commission to use the documents in a public hearing. It appears that the Court was concerned with a decision to release the documents in public hearing, as to which Mr Johns was entitled to be heard. There is no clear finding that he would have had a similar entitlement if the documents had been released only to the Commissioners and subject to a condition otherwise maintaining confidentiality in their contents. Further, the application of the requirements of procedural fairness in respect of an investigation of suspected criminal activity by a body established for that purpose may be sparse: National Companies and Securities Commission v The News Corporation Ltd [1984] HCA 29; 156 CLR 296. In short, it is doubtful whether Johns would support a right to be heard in the event that the Commission thought it appropriate, in the exercise of its statutory powers, to release the material to the police or the DPP, at least if a condition of release was that the material not be published beyond the proper requirements of an investigation or a prosecution.

(c) whether disclosure to police might prejudice a fair trial

25 In these circumstances it is unnecessary to address other elements in the applicant's case, namely whether the purpose of s 13(9) relied upon in the present case, to avoid disclosure of material which might prejudice a fair trial, was satisfied. However, against the possibility that the foregoing analysis is erroneous, the elements may be briefly considered. Disclosure to the police will be addressed first.

26 The Crime Commission Act gives no protection against an answer being used for the purposes of an on-going criminal investigation. Indeed, to impose such a constraint would be to limit the functions of the Commission in a manner which finds no source in ss 6, 7 or 8 of the Crime Commission Act. True it is that an important function of the Commission is to assemble evidence "that would be admissible in the prosecution of a person for a relevant offence" - s 6(1)(b) and (2) - which, given the use immunity for answers to questions, can never include admissions made by a person who is charged with a relevant offence. But that is by no means the sole function of the Commission: rather, the primary function of the Commission is to "investigate matters relating to a relevant criminal activity" referred to it by its Management Committee for investigation - s 6(1)(a) - and to "disseminate intelligence and information to such persons or bodies as the Commission thinks appropriate": s 7(a).

27 The principal object of the Act is "to reduce the incidence of illegal drug trafficking"; the secondary object is "to reduce the incidence of organised and other crime": s 3A. The phrase "relevant criminal activity" (referred to in s 6(1)(a)) means "any circumstances implying ... that a relevant offence may have been ... committed", where "relevant offence" includes a serious drug offence and any other offence as to which the Management Committee is satisfied that its investigation is in the public interest and that "the use of the Commission's functions may be necessary to fully investigate the offence": s 3(1).

28 The investigation of criminal activity, if publicly revealed, may have the capacity to prejudice a person's safety or reputation, or to prejudice the fairness of a trial consequent upon charges being laid. The Commission is given powers and, in circumstances identified in s 13(9) a duty, to take steps to avoid publication of information where that might prejudice a person's safety or reputation or fair trial.

29 The reference to prejudice to a fair trial is of some importance. In relation to known criminal activity, the successful end to a criminal investigation is likely to be the laying of charges with at least a possibility of a trial. A primary purpose of the Crime Commission Act is to enhance the likelihood of the laying of charges and the prosecution of such charges at trial. The primary purpose of the Commission is thus furthered by an appropriate non-publication order, but impaired by a restraint on disclosure to the police or prosecuting authorities. Thus, read in its statutory context, the purpose of s 13(9) is not to limit or prevent disclosure or dissemination of material for the purposes of investigation or prosecution, but to prevent any wider publication which would jeopardise those functions.

30 That conclusion is consistent with the statutory language which refers to furnishing evidence (s 6(1)(b) and (2)), furnishing information or a report on that information (s 6(3)(a) and (3A)(a)) and disseminating intelligence and information (s 6(1)(d) and (7)(a)). In relation to unauthorised disclosure, the Act refers to divulging or communicating information: ss 28(5)(a) and 29(2)(b) and disclosure (in s 29A). By contrast, "publish" and "publication" are only used (except in relation to bulletins in s 28 and the Gazette in Schedule 4) in s 13(9) and (12). The concept of publication in relation to the safety or reputation of an individual or the fairness of a trial would ordinarily connote making information available to the world at large or to a section of the public. That is a concept distinct from release, dissemination or furnishing to a governmental authority for statutory purposes. On that basis, the terms of s 13(9) have nothing to say about the exercise of the Commission's own functions in providing information or evidence to the police or the DPP.

31 There are other indicators which support that view. Because s 18B(2) does not preclude use of answers given under compulsion for the purposes of further investigation, it is implausible to read s 13(9) as conferring on the Commission a power to direct itself as to the use it can make of answers in the further investigation of criminal activity. There are two ways in which further investigation can happen. First, the Commission may arrange for police officers to serve as staff of the Commission: s 32(5). Alternatively, the Management Committee may arrange with the Commissioner of Police for a "police task force to assist the Commission": s 27A(1). The secrecy provisions in s 29 apply both to police officers who are members of the staff of the Commission and to members of a police task force. If the Commission is entitled to use information gained in the course of a hearing to carry out further investigations through police engaged to provide services either under s 27A or s 32, there is no basis in the statute to suggest that the information cannot, in circumstances deemed appropriate by the Commission, be supplied to police investigating the relevant criminal activity as members of the NSW Police Force.

32 There was no authority relied upon for the proposition that the Commission could not supply information to members of the Police Force: such a proposition is inconsistent with the functions and purposes of the Commission and must, accordingly, be rejected. There was, therefore, no obligation for the Commission to make an order precluding publication of any evidence to the police.

33 This analysis does not mean that the Commission is free to conduct its activities in a manner which could constitute a contempt of court in relation to criminal proceedings (or indeed civil proceedings, although that is far less likely to occur). The conclusion is, rather, that such constraints as exist do not arise from the operation of a direction by the Commission to itself under s 13(9). The proper basis for that conclusion is that there is nothing in the Crime Commission Act which purports to relieve the Commission from the general law obligation not to conduct itself in a manner which might constitute a contempt of court. That such an obligation is founded in the general law may be supported by the limited operation of s 13(9). That provision is only concerned with publication of evidence (and other material). In Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188 a threatened contempt was identified in circumstances where a Royal Commission proposed to continue to examine a person who had been charged with a criminal offence while the criminal proceedings were still outstanding. It was accepted by the Court that the examination would take place in private, the evidence would not be publicly released and could not be used at the criminal trial. Nevertheless, the examination itself was held to constitute a contempt. Section 13(9) would have nothing to say about conduct other than publication of evidence; the fact that the Crime Commission might be restrained for a contempt of court not involving the publication of evidence must depend upon the general law and its ability to resist such restraint would depend upon a proper construction of the Crime Commission Act as a whole. A similar approach should be adopted in respect of a public release of evidence, regardless of s 13(9).

(d) whether disclosure to the DPP might prejudice a fair trial

34 The next question is whether any duty imposed by s 13(9) to prevent publication which might prejudice a fair trial encompassed an obligation to ensure that the transcript of evidence given before the Commission is not supplied to the Director of Public Prosecutions. The formulation of the question in these terms renders an affirmative answer difficult. First, nothing in the Crime Commission Act would support an affirmative answer. Only with some awkwardness could the release of information to the Director of Public Prosecutions be seen to constitute "publication" for the purposes of s 13(9). Secondly, no case was identified in which disclosure of material, even if inadmissible or illegally obtained, to a prosecutor has been held to give rise to an unfair trial. While misuse of such material could lead to a trial being aborted or a conviction set aside, there is no reason why the Commission should expect, or has an obligation, to protect against misuse.

35 Leaving all that aside, the artificiality and prematurity of the applicant's case remains a problem. The likelihood of different considerations arising at different times may be illustrated by reference to the second question which the applicant refused to answer. The question itself indicated that three people were believed to have been in the car when shots were fired. Each of those three might be the subject of compelled testimony before the Commission. Each might tell a different story as to where he or she was in the car and who fired a gun. Independent evidence may indicate that one or more of the statements was not to be believed. If charges were to be laid in such circumstances, it would be the responsibility of the Director to formulate appropriate charges for the purposes of an indictment: Director of Public Prosecutions Act 1986 (NSW), s 7. The Director must, of course, present a charge supported by admissible material. However, inadmissible material may demonstrate that it is inappropriate to formulate a charge in a particular way or against a particular individual. It would not obviously be in the public interest to foreclose access to that material.

36 No reference was made in this context to the recent amendments to the Director of Public Prosecutions Act which impose on "law enforcement officers investigating alleged indictable offences" the duty to disclose to the Director "all relevant information ... obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person": s 15A(1). The term "law enforcement officer" includes an officer of the Crime Commission: s 15A(9). While that duty did not arise in those terms at the time of the hearing before the Crime Commission or before the primary judge, s 15A, as in force in August 2012 did impose an obligation in similar terms on "police officers" subject to a bona fide claim of "statutory immunity", which may have included a duty not to disclose pursuant to a direction of the Commission: s 15A(6), which remains in similar form.

37 As with disclosure to the police, there can be no carte blanche obligation not to provide a transcript of evidence taken before the person was charged with any offence to the prosecuting authorities, in the event that charges are laid. Again, the present direction precludes both forms of disclosure in any event.

Consistency with authorities

38 The remaining question is whether the preceding analysis is consistent with existing authorities in respect of the Crime Commission Act and its Commonwealth equivalent, the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The applicant sought to gain support for his contentions from the decision of the Full Court of the Federal Court in Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258 ("ACC v OK") and a decision of the Court of Criminal Appeal, following that judgment, namely R v CB; MP v R [2011] NSWCCA 264 (McClellan CJ at CL, Buddin and Johnson JJ agreeing). Reference should also be made to the recent decision of the Court of Criminal Appeal, R v Seller; R v McCarthy [2013] NSWCCA 42 (Bathurst CJ, McClellan CJ at CL and Rothman J). Each of those decisions concerned the operation of the ACC Act and not the State legislation. While they serve common purposes, there are significant differences in their structures and language.

39 In order to assess the relevance of the authorities relied upon, it is helpful to distinguish a number of procedural variables. The first set of variables involves the time of the questioning. Thus, the questioning may be:

(a) before the laying of any criminal charge, or

(b) after a charge has been laid, in relation to -

(i) the subject matter of the charge, or

(ii) other matters.

40 The second set of variables concerns dissemination or publication of evidence obtained under compulsory powers, which may be:

(a) to police for investigation;

(b) to the prosecution in respect of a charge, or

(c) to the public at large.

Dissemination or publication of evidence could also occur before or after charges are laid. Even in relation to a prosecution, as it is the Director of Public Prosecutions who is responsible for formulating charges on an indictment, dissemination to the DPP may be either before or after filing an indictment.

41 The third set of variables concerns the relief sought and the stage at which relief is claimed. In broad terms, the relief may involve:

(a) prohibition against questioning;

(b) prohibition against dissemination of evidence obtained under compulsion;

(c) a stay of criminal proceedings, or

(d) an appeal against a verdict at trial.

42 Of the cases noted above, only ACC v OK involved a challenge to the obligation of a witness to answer questions. In this sense, ACC v OK, like the present case, involved a pre-questioning prohibition. However, it differed from the present case in that it was only concerned with the power of the ACC to continue to question a person after charges had been laid and in relation to the subject matter of the charges: 185 FCR 258 at [86]. Each of the other cases (CB and Seller) concerned applications for a stay of criminal proceedings, based on the fact of compulsory questioning by the ACC. CB and Seller differed in other respects. In Seller, both Mr Seller and Mr McCarthy were questioned before charges were laid, the evidence being provided to the Commonwealth DPP in order to determine whether, and if so what, charges should be laid: Seller at [19], [23], [28] and [30].

43 While the procedural stage in ACC v OK was similar to the present case, the witness having refused to answer questions, the equivalent of s 18(2) in the State law, namely s 30(2) of the ACC Act, did not provide for a defence of "reasonable excuse" for refusing or failing to answer a question, nor was there a statutory right of appeal against a direction to answer.

44 There was a further factual distinction of some importance. The argument put forward by the witness in ACC v OK relied upon the fact that before the examination at which he took objection, he had already been arrested and charged with the offence in respect of which he was being questioned. In Hammond the High Court held that it would be a contempt for a Royal Commission to compel an accused person to answer questions in relation to an offence with which he stood charged in pending criminal proceedings. In Hammond, Gibbs CJ stated at 198:

"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. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the 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."

45 The critical feature of Hammond, as discussed in the later case of Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281, was that the plaintiff in Hammond "was awaiting trial for a criminal offence, and there was a real possibility that if he was required to answer incriminating questions the administration of justice would be interfered with": at 299 (Gibbs CJ). The fact that Mr Sorby had not been charged, although a decision had been made to charge him, was sufficient to distinguish the case from Hammond: at 307-308. The High Court in Sorby accepted that the Parliament could validly override the privilege against self-incrimination although it accepted that, in particular circumstances, an examination might amount to a contempt, which could be restrained.

46 In ACC v OK, the Full Court of the Federal Court considered that the powers of the Commission to direct that material not be released, or not be released at a particular time, under s 25A(9) of the ACC Act, provided sufficient protection against a contempt of court in relation to the criminal proceedings and allowed for the Commission's investigation to proceed, in accordance with the objects of the Act which the majority noted "could be seriously impaired if its investigations had to stop for an indeterminate period because charges had been laid": at [109] (Emmett and Jacobson JJ). The joint reasons continued at [110]:

"The coercive powers conferred on examiners do not come to an end on the laying of criminal charges. The provisions of s 25A [which include provisions equivalent to those in s 13 of the Crime Commission Act] clearly contemplate examinations continuing in the face of pending charges. The provisions confer on an examiner, and on the CEO, powers to ensure that there is no real risk to a fair trial. That is to say, the terms of the provisions expressly contemplate that the examiner must give a direction if the failure to do so might prejudice the fair trial of a person who has been charged with an offence. Further, the CEO must not vary or revoke a direction once made, if the CEO forms the view that the revocation or variation might prejudice the fair trial of a person who has or may be charged with an offence."

47 Section 25A(9) of the ACC Act differed from s 13(9) of the State Crime Commission Act in that it conferred the power (and obligation) to give a non-publication direction on the examiner, whilst separate power to vary or revoke a direction made by an examiner was conferred on the Chief Executive Officer ("CEO") of the ACC. However, the CEO was under an obligation not to vary or revoke a direction "if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence": s 25A(11).

48 At the time of the events in ACC v OK, where the ACC had obtained evidence that would be admissible in prosecution of an offence, the CEO was required to give the evidence to a relevant law enforcement authority: s 12(1). The CEO was also empowered to give other information relevant to the activities of a law enforcement agency, if to do so would not be contrary to a law of the Commonwealth, a state or territory: s 59(7). (These provisions have since been amended.) The joint reasons concluded that "[a] direction given under s 25A(9) is effective, and overrides the statutory obligation imposed by s 12 or s 59 on the Commission, the CEO or the Board to assemble and give evidence or disseminate and furnish information or reports": at [111].

49 The differences in the statutory schemes and the fact that, unlike the present case, the Full Court was dealing with an examination of a person who had already been charged with an offence, prevent the reasoning applying in the present case. Nevertheless, it must be acknowledged that the Full Court's construction of the ACC Act differs from that adopted above in relation to the Crime Commission Act. The obligation under the general law to avoid conduct which might constitute a contempt of court forms a limitation on any obligation to provide information or furnish admissible evidence. At least within the scheme of the Crime Commission Act, the idea that such protection depends on the Commission giving itself a direction is unattractive. In any event, the construction of the legislation set out at [33] above achieves the same effect in the present circumstances.

50 The second case relied upon by the applicant was the decision of the Court of Criminal Appeal in CB. That case also concerned the ACC Act and not the State legislation. The facts in CB resembled those in ACC v OK in that at least one of the applicants (CB) was examined before the ACC in respect of matters the subject of extant criminal charges: [57], [90] and [131]. The procedural stage reached, however, differed from that in ACC v OK. In CB the ACC stopped its examination after the first day and did not provide a copy of the transcript to the DPP: at [2]. CB and MP, however, sought a permanent stay of the charges brought against them; the trial judge in the District Court granted a stay in respect of CB but not in respect of MP. The facts thus differed from those in the present case because CB was examined after the charges were laid. The possible disclosure of his evidence before the ACC was only indirectly relevant to the decision that the conduct of the examination did not warrant a permanent stay of the criminal proceedings.

51 The Court of Criminal Appeal held that the mere fact that an examination had been conducted after the charges were laid, in regard to the subject matter of the charges did not constitute a contempt of the criminal court nor provide a basis for the permanent stay: at [103] and [128]. The reasoning of McClellan CJ at CL accorded with, and adopted that of Emmett and Jacobson JJ in ACC v OK: at [108]-[111]. The final conclusion in CB was in the following terms, at [111]:

"Provided the knowledge of the proceedings in the Commission are adequately protected an accused person's entitlement to a fair trial in accordance with the adversarial process will be ensured. The situation is no different whether at the time of the Commission hearing a charge has not been laid or the criminal process has commenced. The right to a fair trial will only be compromised if information relevant to a person's defence in any form, including any derivative information, is available to the prosecution."

52 The last sentence has been qualified in the recent decision of Court of Criminal Appeal in Seller, where Bathurst CJ stated (with the agreement of McClellan CJ at CL and Rothman J) at [106]:

"Any relief given as a result of dissemination contrary to a direction or in circumstances where a direction should have been given, would depend upon whether in fact the dissemination has compromised the accused's rights to a fair trial and what steps are necessary to alleviate the position."

53 McClellan CJ at CL clarified the last sentence in the passage from his judgment in CB set out above, noting that while the right to a fair trial "could" be compromised by release of information to the prosecution, this would not necessarily be the case: at [120].

54 There is a further respect in which Seller may qualify the reasoning in CB. Thus, in CB it was said that the protection available under the ACC Act would be sufficient to ensure a fair trial whether or not a charge had been laid "at the time of the Commission hearing". In Seller, the principles were said to be the same whether the dissemination occurred "before or after charge": at [105].

55 These matters need not be considered further. Suffice it to say that none of the authorities support the proposition that, in circumstances where a non-publication order precludes dissemination to persons outside the Commission, the applicant has a reasonable excuse to refuse to answer questions.

Conclusions

56 For the reasons set out above, the trial judge was correct to dismiss the challenge to the determination of the Commission. This Court should make the following orders:

(1) Order that publication of the name, and disclosure of other information tending to reveal the identity, of the applicant (who may be referred to by the letters SD) be prohibited.

(2) Grant the applicant leave to appeal.

(3) Direct that the amended draft notice of appeal filed on 12 December 2012 stand as the notice of appeal.

(4) Dismiss the appeal.

(5) Order the appellant to pay the respondent's costs of the proceedings in this Court.

57 MACFARLAN JA: I agree with Basten JA.

58 BARRETT JA: I agree that the orders proposed by Basten JA should be made. I can state my reasons briefly. I do so as if the provisions of the New South Wales Crime Commission Act 1985 had not been superseded by those of the Crime Commission Act 2012.

59 As it applies in relation to "any evidence given before" the Commission, s13(9) of the New South Wales Crime Commission Act has two aspects. If certain circumstances exist, the Commission must make a non-publication direction in relation to the evidence. Where those circumstances do not exist, the Commission may, but need not, make such a direction.

60 The Commission is compelled to direct non-publication of evidence given before it if failure to do so might produce prejudice of a kind referred to in the closing words of s 13(9), including prejudice to the fair trial of a person who has been or may be charged with an offence. In considering whether to make a direction where the possibility of relevant prejudice is suggested, the Commission must therefore come to a view about the capacity of publication of the particular evidence to cause such prejudice.

61 Where circumstances do not compel action by the Commission and the making of a direction is a matter of discretion only, the decision whether to make a non-publication direction in relation to evidence given will be informed principally by the need to preserve the integrity and efficacy of the relevant investigation, that is, the investigation referred to in s 13(1): see, for example, Gangemi v Australian Securities and Investments Commission [2003] FCA 494; (2003) 129 FCR 284 (at [37]). And generally speaking, the person giving evidence will be in no position to know what is required for the protection of the integrity and efficacy of the investigation.

62 The present proceedings concern the first aspect of s 13(9). It was accepted before the primary judge that, although the applicant had not been charged with any offence, he was, in terms of the section, "a person who . . . may be charged with an offence". The Commission was therefore obliged to make a non-publication direction in respect of "any evidence given before it" by the applicant if failure to make the direction might prejudice the fair trial of the applicant.

63 Before the applicant was examined on 6 August 2012, the Commission took certain action purportedly by reference to s 13(9): see [10] of Basten JA's reasons. The applicant was then asked certain questions and gave certain answers. Further action apparently based on s 13(9) was taken upon a resumption of the hearing on 15 August 2012: see [11] of Basten JA's reasons. There is no need to consider precisely what legal effect, if any, the directions of 6 and 15 August 2012 produced. It was (and is) common ground that the directions did not have the effect of prohibiting publication of the applicant's evidence to the police or the Director of Public Prosecutions.

64 When, on 15 August 2012, the applicant was asked the two further questions referred to by Basten JA at [4], he declined to answer. His contention was (and is) that, because no s 13(9) direction had been made in terms that prohibited publication of his evidence to the police and the Director of Public Prosecutions, he had, in terms of s 18(2), "reasonable excuse" for refusing or failing to answer those two further questions.

65 I am of the opinion that, on any meaning of "reasonable excuse", the absence of a non-publication direction in the terms the applicant wished to see in force did not constitute "reasonable excuse" for his refusal or failure to answer the two particular questions.

66 The task of the Commission under the relevant part of s 13(9) is, in the first instance, to consider whether failure to make a non-publication direction in respect of "any evidence given before it" might prejudice the fair trial of a person who may be charged with an offence. Only if the Commission decides that failure to direct non-publication might have that effect is it compelled to direct non-publication.

67 The Commission cannot address the question of the possible or likely impact of publication on a fair trial except by reference to the particular "evidence given before it". Evidence will commonly consist, as here, of questions and answers to them. Only if the answer to a question, as well as the question itself, is before the Commission can it consider the possible or likely consequences of publication of the evidence. It follows that a direction cannot be made in respect of an answer not yet given - also that a person giving evidence cannot, as it were, bargain in advance so as to be able to give answers only after a direction has been made in respect of evidence consisting of future answers and the questions to which they will respond.

68 To take an example apposite to the circumstances of this case, if a person giving evidence at a hearing is asked whether he or she was at a particular place on a particular occasion, a positive answer might differ radically from a negative answer when it comes to an assessment of the capacity of the evidence constituted by the question and answer to prejudice a fair trial of the person. That assessment could only be made by reference to both the question asked and the answer given.

69 A person giving evidence at a hearing has no choice but to accept the statutory scheme, of which Kirby J said in Dalton v New South Wales Crime Commission [2006] HCA 17; (2006) 80 ALJR 860 (at [64]):

"The 'right to silence' and to put the prosecution to proof of serious criminal accusations that may be made against a person summoned (or the family or associates of that person) are severely modified by the State Act."

70 In relation to an answer yet to be given by a person giving evidence at a hearing, the person has several important assurances: first, the assurance provided by s 13(3) that the hearing will be held in private; second, the assurance provided by s 18B as to very restricted admissibility of that evidence in legal and disciplinary proceedings (reinforced by what is effectively a right of appeal under s 19); and, third, the assurance that comes from the secrecy and proper purpose obligations imposed by s 29 on members of the Commission and its staff and certain other persons - plus, of course, the knowledge that the question of a s 13(9) non-publication direction may be raised with the Commission after the answer has been given.

71 This last matter is significant. It does not rest on mere hope of indulgence. Section 13(9) compels the making of a non-publication direction where failure to act might prejudice a fair trial of the person who has been or may be charged with an offence; and a person giving evidence should assume that the Commission will do its duty. Kirby and Callinan JJ observed, in this connection, in Z v New South Wales Crime Commission [2007] HCA 7; (2007) 231 CLR 75 (at [15]):

"It must also be postulated that the commission would take proper precautions for the subsequent security of such information and for the observance of restrictions on those having access to such materials."

72 For present purposes, the determinative point is that, when the applicant failed or refused to answer the two particular questions on 15 August 2012, no occasion had arisen for the Commission to make the s 13(9) direction the applicant sought concerning the evidence consisting of the two questions and the answers to them. This was because that evidence did not then exist so as to be capable of being assessed by the Commission in the necessary way. Absence of a direction precluding publication to the police and the Director of Public Prosecutions of evidence consisting of the questions and the answers yet to be given did not constitute, in terms of s 18(2), "reasonable excuse" for the applicant's refusal or failure to answer the questions.

73 It is unnecessary to consider other questions canvassed in the course of the hearing, including whether the Commission itself, being a corporation (s 5(1)), is bound by a s 13(9) direction so as to be criminally liable under s 13(12) in case of contravention of the direction; and whether a s 13(9) direction can, in effect, alter what would otherwise be the statutory functions and duties of the Commission by precluding certain forms of communication (or publication) that the Commission would otherwise be free or bound to make (compare, in relation to similar provisions of the Australian Crime Commission Act 2002 (Cth), Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258, R v CB; MP v R [2011] NSWCCA 264 and R v Seller; R v McCarthy [2013] NSWCCA 42).

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Amendments

25 February 2014 - Adding "the" before "public" in [30]. Correcting punctuation in last line of [34]. Deletion of "the questioning of" in last sentence of [42]. Replacing "an law" with "a law" in [48]. Replacing "paragraph [2]" with "at [2]" in [50].
Amended paragraphs: [30], [34], [42], [48], [50]

Decision last updated: 25 February 2014