Bull, Re [1997] QSC 10 [1998] 2 Qd R 224; (1996) 90 A Crim R 575

IN THE SUPREME COURT OF QUEENSLAND Brisbane O.S. No. 3838 of 1996 IN THE MA ITER of the Criminal Justice Act 1989 - and - IN THE MA ITER of an appeal by PATRICK JOHN BULL against a decision of a Misconduct Tribunal exercising the original jurisdiction - and - IN THE MATTER of LEO NICOLAUS OCKHUYSEN REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 7 Februarv 1997 CATCHWORDS: CRJMINAL JUSTICE ACT 1989 - construction of ss.94(2) and 96(1) - effective claim of privilege Counsel: Solicitors: C. E. K . Hampson Q.C. with LJ. Hampson for the Appellant R. Hanson Q. C. for the Respondent Crown Solicitor for the Appellant Gilshenan & Luton for the Respondent Hearino- Date: 23 August 1996 -- 1 of 6 -- IN THE SUPREME COURT OF QUEENSLAND O.S. No. 3838 of 1996 Brisbane IN THE MA ITER of the Crimina! Justice Act 1989 - and - IN THE MA ITER of an appeal by PATRICK JOHN BULL against a decision of a Misconduct Tribunal exercising the original jurisdiction - and - IN THE MATTER of LEO NICOLAUS OCKHUYSEN REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 7 Februarv 1997 This is an appeal pursuant to s. 48 of the Criminal Justice Act 1989 (the Act) against a misconduct tribunal's ruling that the respondent's evidence before an inquiry to which he was summoned pursuant to s.74 of the Act were inadmissible by reason of the operation of s.96. Section 74(1) (a)(ii) of the Act provides to the effect that when a person is summonsed to appear before the Criminal Justice Commission "other than a misconduct tribunal" the person is "then and there to give evidence in relation to the subject matter of the commission's investigation". That is to be contrasted with s.74(1)(a)(i) which deals with a summons to attend before a misconduct tribunal. It is convenient to refer to proceedings under s.74(1)(a)(ii) in terms of "the inquiry" to distinguish them from proceedings before a misconduct tribunal. The respondent was summonsed to appear at an inquiry. The summons directed to -- 2 of 6 -- 2 the respondent pursuant to s.74(1)(a)(ii) required him to give evidence about- "An allegation that (he had) received corrupt payments from a person who operated a prostitution service in return for providing protection to that person and her service and that he was responsible· for organising a sex show at a function attended by police officers. " When he appeared at the inquiry the respondent, acting on legal advice, objected- "To furnishing any statements or making any disclosures in these proceedings on the ground that furnishing any statement or making any disclosures would tend to incriminate me. " This has been referred to as a blanket objection. It can't be doubted that information from the respondent tending to establish allegations of the kind indicated in the summons would be self incriminating in the relevant sense. The respondent having taking the objection before the inquiry in the terms referred to above, the officer conducting it expressed the view that a claim of privilege could only be taken in respect of specific questions which the witness bona fide believed could be incriminating and hence that the claim of privilege was not properly made. The inquiry then proceeded with the respondent answering the questions directed to him. He renewed his objection at an adjourned hearing of the inquiry and the same course of events then followed. That was the position on 5 December 1995 when the respondent was charged with official misconduct and was summonsed to appear before a misconduct tribunal constituted pursuant to Part 2 Division 6 of the Act. He appeared on 12 April 1996. An objection was then taken on the respondent's behalf to the effect that all his statements at the inquiry "insofar as they are now material" were inadmissible by virtue of s.96 of the Act. The tribunal then determined that question as a "preliminary point" on the basis that if the respondent's contention was correct that would be the end of the proceedings before the tribunal presumably because, absent his evidence at the inquiry, there was no prospect of establishing the misconduct charged. -- 3 of 6 -- 3 Section 94(1) of theAct provides that, subject to s.77, a person is not to be excused from furnishing information, or producing any record of thing, to the commission upon a claim of privilege on any ground. Section 77 provides for claims of privilege on the grounds of legal professional, crown (or public interest) or parliamentary privilege. A person has a lawful excuse for non-compliance if it is found by a judge of this Court that a claim on one of those basis is valid. Section 94(2) provides relevantly for present purposes, that a person summonsed before a inquiry is not entitled - "(a) to remain silent with respect to any matter that in the commission's opinion it is relevant to the commission's investigation, if the commission requires the person to give evidence with respect to that matter; (b) to fail to answer a question relating to any such matter that the commission requires the person to answer; (c) to fail to produce etc. on the ground that to comply with the requirement would tend to incriminate the person. " Section 96(1) of the Act then provides - "A statement of information furnished by a person to the commISSIon, a disclosure made before the commission, after the person or witness has objected to furnishing the statement or the making of the disclosure on the ground that it would tend to incriminate the person or witness, is not admissible in evidence against the person or witness in civil or criminal proceedings in a court or in a disciplinary proceedings." Subsection 1 does not apply in relation to proceedings m respect of contempt of the commission or an offence of perjury. The case before the tribunal and before me was argued essentially on the basis that a "blanket objection" was insufficient to attract the protection afforded by s. 96(1). The position with a blanket objections is in my view correctly stated by Northrop J. -- 4 of 6 -- 4 in C v. National Crime Authority} in these terms- "A mere statement by the witness that his answer might tend to incriminate him is not sufficient. The court must be able to see for itself that there is reasonable ground to fear that the answer may have the state effect. What it will be necessary for a witness to establish in order to be allowed to claim the privilege will depend upon all the circumstances of the case. So where 'a question concerns conduct that is itself innocent, and will only involve a risk to a witness as a link in a chain of proof, he must satisfy the court by facts that will, in that event, by outside the terms of the question, that the answer would, or might tend to, incriminate him .. '." In Gamble v. lackson2 Starke J. in a judgment agreed with by Crockett and Marks JJ. said - " ... questions of an incriminating nature may be of two kinds. The first is where the question itself reveals that the material is of a criminal and therefore incriminating nature. In such a case no doubt the officer would usually not have to produce any material to establish that he had a lawful excuse. The second is where the question is innocent on its face but seeks after material which may form a link in a chain of incriminating material. In such a case the applicant in my opinion must fail to point to material which indicates the incriminating character of the material. Such material of course need not be itself of an incriminating nature. It will usually be sufficient to show what it is the Crown alleges." Put shortly, it is misleading to speak of a "blanket objection" as being adequate or not. It is simply a question of whether the material, the subject of the objection is sufficient in isolation to establish the grounds of the client or whether more is required. In the former case a "blanket objection" may well suffice. A court or tribunal may well be able to "see for itself" if, for example, the nature of the witness's connection with particular events being canvassed is obvious and incriminatory. Each case turns on its own facts. Returning to the circumstances of the present case as I understand it, the effect of s.94(2) is to remove the respondent's common law right to remain silent on the ground of 78 A.L.R. 342 2 (1983) 2 V.R. 334 at 335 -- 5 of 6 -- 5 self-incrimination in respect of any matter relevant to the inquiries investigation if the witness is required to give evidence in respect of the matter. The effect of the objection is not to relieve the respondent of an obligation to give the evidence to the inquiry, rather the evidence cannot be used in the subsequent proceedings when it would tend to incriminate the witness. The issues for an inquirer under s.94(2) are therefore an opinion that the matter in respect of which information is sought is relevant to the investigation and if it is, whether the person should be required to give evidence in respect to that matter. In this case an objection was taken and those criteria were satisfied. While it is true that s.94(2) speaks of an objection on the ground that to comply with the requirement would tend to incriminate, that does not determine whether or not the evidence should be given. As I have said earlier, the objection effects its subsequent incriminating use in, among other things, disciplinary proceedings. It may be proper on occasions for an inquirer to elicit the basis for asserting that the disclosure sought would tend to incriminate the witness but that does not arise here. It has not been suggested that the evidence given to the inquiry did not tend to incriminate the respondent in the proceedings being dealt with before the disciplinary tribunal, the position is to be the contrary. Particulars of the charges against the respondent which brought him before the disciplinary tribunal included that the respondent gave false evidence before the inquiry as to his relationship with prostitutes. The proceedings were not in respect of a contempt of the commission or an offence of perjury so as to within the exception provided by s. 96(2). In those circumstances, as I have said, it is not difficult to conclude that the material to which objection was taken was incriminating. In my view the requirements of s. 96(1) have been satisfied. It has not been demonstrated the tribunal erred in law and the appeal should be dismissed. -- 6 of 6 --