Australia: Self incrimination, regulators and commissions – do I really have to answer that question? Part 2

This is our second article in this series – the first can be found here. In this article we consider who can receive or make use of the transcript of a compulsory examination – including third parties – and the protections available to a person pleading a defence in court proceedings.

WHO CAN RECEIVE TRANSCRIPTS OF REGULATORS' COMPULSORY EXAMINATIONS?

1. The prosecutor?

The accusatorial judicial process (which is a fundamental right) begins with the laying of charges and ends with the criminal trial. Giving the prosecutor the transcript of an examination conducted under compulsion fundamentally alters the process.

Providing that transcript will be a miscarriage of justice except where legislation makes it clear (expressly or by necessary implication) that:

• the transcript can be provided; and that
• the rights which the examinee would otherwise possess have been varied.

Clearly, to know if a miscarriage has occurred, you need to look at the legislation.

ASIC and APRA examination transcripts

As far as ASIC section19 examination transcripts are concerned, there are conflicting decisions at trial.¹

In the most recent case, a transcript was provided to the Director of Public Prosecutions (DPP), initially for the purpose of deciding whether charges should be laid. The trial judge found that this was improper, and ordered that the examinee could not be prosecuted by the same DPP team that had received the transcript in order to decide whether to lay charges at the outset. A prosecution could only proceed if run by a different team.

However in a different case under the ASIC Act,² the NSW Court of Criminal Appeal found that there was a clear implication arising from the ASIC Act that the DPP officers responsible for the conduct of proceedings against an individual could have access to the transcript – not only to formulate the charges, but to also prosecute them. That is because the ASIC Act makes clear that the mechanism to protect an individual from self-incriminating evidence being used against them only operates during the trial if the prosecutor seeks to tender the evidence.

In order to prevent self-incriminating evidence being admitted at trial, two conditions must be satisfied:

• When answering a question during an examination, the examinee must have claimed the privilege in respect of their answer before answering the question.
• At the trial, the court must find that the answer would in fact incriminate the examinee.³

Unless both these conditions are satisfied, the prosecutor may tender the transcript.

Logically therefore, it was intended by Parliament that under the ASIC Act the prosecutor could have access to the transcript from the outset. This would also be the position under the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act).

ACCC examination transcripts

The position under the Competition and Consumer Act 2010 (Cth) (CC Act) is less clear. The CC Act prohibits outright the use of the transcript and it does not require a person to assert the privilege at the time they answer a question, nor an assessment to be made whether the answer may incriminate the examinee – so there is never any potential for the examination transcript to make its way into evidence. The basis for the 'implication' that the Court of Criminal Appeal identified supports the position that the DPP cannot receive ACCC transcripts.

However, in the ASIC Act decision mentioned above, the Court of Criminal Appeal identified a second factor supporting the use of examination transcript in evidence. This is that one of ASIC's functions is to prosecute contraventions of corporations law,⁴ which is consistent with ASIC making the transcript available to the prosecutor. Similarly, the CC Act provides that the ACCC and DPP may initiate prosecutions for contraventions.⁵

It is unclear whether this second factor is an independent basis on which transcript material can be provided to the DPP. If so, the DPP could receive transcripts of ACCC interviews. We will have to see if the issue arises once the first criminal charges are laid by the DPP for cartel conduct.

2. Third parties and private litigation?

ASIC and APRA examinations

Section 25 of the ASIC Act and section 281 of the SIS Act allow ASIC and APRA to release an examination transcript to a lawyer for a third party, if the lawyer satisfies the regulator that their client is engaged in, or contemplating commencing, litigation which relates to the subject matter of the examination.

This power facilitates private actions - and is particularly useful for plaintiffs contemplating class actions. The release of the transcript can be made conditional (eg subject to specific confidentiality obligations).

ACCC examinations

The CC Act has no similar provision. Section 155AAA prohibits the disclosure of ACCC s 155 examination transcripts other than to a closed set of recipients, including government ministers, royal commissions, other government agencies (such as ASIC) and foreign government agencies.

However, if a person already has possession of a transcript (eg because it was provided to them by the ACCC by way of discovery in other proceedings) they may also be required to disclose that transcript to other parties in separate related litigation.

This issue arose in July 2015.⁶ The ACCC opposed disclosure of the transcripts, arguing that this would create discomfort on the part of examinees about the confidentiality of the process. However, the Court ruled that the interests of justice in the related litigation required the transcripts to be discovered to the third party.

Who can receive transcripts of Crime Commission examinations?

In several recent cases, the High Court has considered whether commissions may provide transcripts to other bodies – such as a DPP – and how this relates to the principles underpinning accusatorial judicial process.⁷ These commissions are generally viewed as having a remit of assisting in the investigation of serious crime, not in the conduct of following prosecutions.

Sadly, there is no hard and fast rule as to the use these commissions can make of the materials they gather in their examinations. Their governing statues set out the permissible uses, and generally there are provisions that protect examinees.

Sitting alongside the legislation is the common law 'principle of legality' – that unless Parliament makes unmistakeably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that effect.⁸ In the absence of an express prohibition on disclosure, in a particular case it may be uncertain whether transcript may be disclosed. The major concern is where a transcript might be provided to a prosecuting authority.

As Chief Justice Bathurst of the New South Wales Supreme Court indicated in a recent speech - although one may hold a strong view on the question, one can never be certain whether a particular provision encroaches on a freedom or protection until a court considers and rules on it.⁹

Pleading and the privileges against self-incrimination and penalty

As we have seen, the privilege against self-incrimination is a basic tenet of our justice system.

For ASIC s 19 examinations, incriminating answers will only be inadmissible in proceedings against an examinee if the examinee asserts the claim for privilege during the examination, before giving their answer.

Under the CC Act, there is no such requirement. Evidence given by a person at an examination is not admissible against them in criminal proceedings – that is, the protection covers more than just incriminating answers.¹⁰ However, an examinee's answers are admissible against them in civil proceedings.

The rules governing Federal and State courts differ. Although they generally operate in a similar fashion, differences in court rules may affect the way in which a defence must be prepared, and whether particular allegations made by a regulator need to be admitted or denied. In other words, the normal application of court rules could require a person to admit to a contravention. This can also come into play if interrogatories are issued, or when orders are being made for the service of affidavit evidence.

The courts are well aware of this, and generally will require a person to file a defence only to the extent it would not adversely affect their claim of privilege. Solutions can be a partial release from the rules,¹¹ a requirement to notify whether a particular statutory defence will be availed of (without providing details),¹² or the ability to file a defence once the regulator's case has closed.¹³

Where the examinee in an ASIC s 19 examination has failed to claim penalty privilege or self-incrimination privilege before answering a question, they may be required to plead to (eg deny or admit) an assertion based on information contained in their answer.¹⁴

Footnotes

¹ See R v Catena (No 3) [2013] WASC 97 and R v Jacobson (Ruling No 4) (2014) 290 FLR 143 – which approved the Director of Public Prosecutions receiving the transcript; and OC v R [2014] NSWSC 1392 (publication restricted) – which did not permit the disclosure.

²R v OC (2015) 298 FLR 203.

³ The Court of Appeal held that the time to determine whether an answer will incriminate a person is at the trial: see R v OC (2015) 298 FLR 203, [111] and [119] (Bathurst CJ).

⁴ Australian Securities and Investments Commission Act 2001 (Cth) s 49(2).

⁵ Competition and Consumer Act 2010 (Cth) s 163.

⁶ Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery) [2015] VSC 352.

⁷ X7 v Australian Crime Commission (2013) 248 CLR 92, Lee v NSW Crime Commission (2013) 251 CLR 196 and Lee v R (2014) 253 CLR 455.

⁸ Re Bolton: Ex parte Beane [1987] HCA 12, Coco v The Queen [1994] HCA 15

⁹ Opening of Law Term Address "The Nature of the Profession: The state of the law", 4 February 2016 accessible at http://www.supremecourt.justice.nsw.gov.au/Documents/Speeches/2016%20Speeches/Bathurst_20160204_speech.pdf.

¹⁰ See the Competition and Consumer Act 2010 (Cth) s 159(2): "Evidence given by an individual before the Commission is not admissible against the individual in any criminal proceeding..."

¹¹ Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq) (2014) 102 ACSR 367.

¹² Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq) (2014) 102 ACSR 367.

¹³ ASIC v Mining Projects Group Ltd (2007) (2007) 164 FCR 32, [24] (Finkelstein J).

¹⁴ Le Roi Homestyle Cookies Pty Ltd (in liq) v Gemmell [2013] VSC 452, [34] (Ferguson J); Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq) (2014) 102 ACSR 367, [61]ff (Ashley JA); Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 2) (2009) 176 FCR 529, [29] (Gilmour J).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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