X7, Lee and compulsory examinations — "Whittling down the Golden Thread"
Jake Harris, CSO Solicitor Advocate
Summary of a seminar dated 20 May 2015
In X7 v Australian Crime Commission & Another  HCA 29 ("X7") the High Court held by 3:2 majority that the Australian Crime Commission Act 2002 (Cth) did not authorise an examiner to require a person charged with an offence to answer questions about the subject matter of the charged offence.
In Lee v New South Wales Crime Commission  HCA 39 ("Lee no. 1") a differently constituted High Court held by 4:3 majority that the Criminal Assets Recovery Act 1990 (NSW) did authorise a judge to order an examination, which required a person charged with an offence to answer questions that may include the subject matter of the charged offence.
This paper will explore the apparent tension between these two decisions and the impact they have upon bodies that undertake the compulsory examination of witnesses.
The "right to silence" and the privilege against self-incrimination
Each of these cases involved consideration of the impact that the relevant provisions had upon the "right to silence". The right to silence is a convenient term for a collection of principles and rules. It is not a right enshrined in the Constitution, but it is nonetheless a "basic and substantial common law right".
Two aspects of the right to silence are relevant for present purposes. These are:
- the privilege against self-incrimination; and
- the right of an accused not to give evidence at trial.
The right to silence is said to arise from the "fundamental principle" of criminal justice. The prosecution bears the burden of proving each aspect of the offence against the accused, and cannot compel the accused to provide any evidence in support. This was referred to as the "golden thread" in Woolmington v Director of Public Prosecutions  UKHL 1:
"Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt … no attempt to whittle it down can be entertained."
Compulsory examination and immunities
From the early 1980s, various bodies were established that could compel witnesses to give evidence. These bodies now include the Australian Crime Commission ("ACC"), the New South Wales Crime Commission ("NSWCC"), the Independent Commission Against Corruption ("ICAC"), royal commissions, special commissions of inquiry and coroners.
In each of these, the relevant statutory provisions generally remove or curtail the privilege against self-incrimination, so that a witness called before the inquisitor may not refuse to answer questions on that basis.
Where the legislature removes the privilege against self-incrimination, and a witness is compelled to answer questions, the witness is generally compensated by restrictions being placed on the use of the testimony. The answers the witness gives cannot be used against him or her in any future proceedings. This is referred to as "direct use immunity" or "use immunity". In some cases an indirect or "derivative use immunity" is also provided. This means that any information or evidence obtained in consequence of the answers given by the witness may not be used in evidence against the witness.
X7 v Australian Crime Commission
In November 2010 the plaintiff X7 was arrested and charged with three indictable offences relating to drug trafficking. After he was charged, and while he was in custody awaiting trial, he was served with a summons to appear before the ACC. The ACC sought to examine him in relation to matters including the circumstances of the pending charges.
The Australian Crime Commission Act 2002 (Cth) ("ACC Act") purports to abrogate the privilege against self-incrimination and provides a use immunity in compensation. Where a witness objects to answering a question on the basis that it might tend to incriminate him or her, that answer is not admissible in evidence against the witness in any criminal proceeding.
At the outset of the examination, the examiner informed X7 that no one associated with the pending charges was permitted to be present and neither would they get a copy of the transcript. X7 made the objection and then answered questions (under compulsion) about the subject matter of the offences with which he was charged. However, the following day he appeared again, this time with a solicitor, and declined to answer further questions. He was told he would be charged with the offence of failing to answer questions.
X7 commenced proceedings in the original jurisdiction of the High Court, seeking certain declarations and injunctions. A case was stated, the principle question being whether the relevant provisions of the ACC Act empowered an examiner to conduct an examination of a person charged with an offence where the examination concerns the subject matter of that offence. The majority (Hayne, Bell and Kiefel JJ) held that the ACC Act did not authorise the examination. The minority (French CJ and Crennan J) held that it did.
The High Court approached the issue as a matter of statutory interpretation. The words of the statute were to be given "the meaning that the legislature is taken to have intended them to have" (Lee (no. 1) at ), and this process begins with a consideration of the text and structure of the Act. Their Honours accepted that it is possible, subject to any constitutional constraints, for the legislature to enact legislation which abrogates the right to silence. In determining whether the provisions had such an effect, the Court in both cases had regard to the "principle of legality". This provides that:
"statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or necessary implication to that effect". (X7 at , )
The majority held that permitting compulsory examination of a person charged with an offence would fundamentally alter the accusatorial process of criminal justice. In other words, it would "whittle down" the "fundamental principle" described above. This would happen regardless of the protection that might be given to the witness, for example by holding the examination in private and preventing publication of the transcript.
The minority held that the text, structure and legislative history of the ACC Act supported an interpretation that the legislature intended to restrict the right to silence. Of particular importance were the safeguards provided pursuant to s. 25A of the ACC Act, which required the examination to be in private and that the examiner give directions limiting publication of evidence in order to protect the fair trial. The reference in s. 25A(9) to a person who has been, or may be, charged with an offence appeared to contemplate that an examination could be conducted with respect to a person who had already been charged but not yet tried. These safeguards could be used to provide a derivative use immunity and prevent the examination occasioning an unfair burden on the witness when facing criminal charges. To the extent that the witness would still be prejudiced in his or her defence, such an impact was necessarily implied.
Taking these matters into consideration, the minority considered that "the public interest in the continuing investigation of serious and organised crime is elevated over the private interest in claiming the privilege against self-incrimination" .
Lee v New South Wales Crime Commission — Lee (no. 1)
Three months after the judgement in X7, the High Court delivered judgment in Lee (no. 1). The appellants had been charged with offences relating to drugs, firearms and money laundering. While these charges were pending, the NSWCC commenced proceedings in the Supreme Court under the Criminal Assets Recovery Act 1990 (NSW) ("CAR Act") for confiscation orders and made an ancillary application for the examination of the appellants before the Court pursuant to s. 31D of the CAR Act. The examination was to be on oath, concerning the affairs of the appellants, including the nature and location of any property in which they had an interest. The CAR Act effectively abrogated the privilege against self-incrimination, and gave the witness a limited use immunity in compensation.
The High Court held by majority that the relevant provisions of the CAR Act did permit the examination by the Court of a person who had been charged with but not yet tried for an offence. The Judges who were in the majority in X7 (Hayne, Bell and Kiefel JJ) were now in the minority in Lee (no. 1). The majority did not overrule X7 but instead distinguished it on the basis that the different statutory provisions had different effect.
The majority considered the text and context of the CAR Act, which tended to support an interpretation that the provisions did authorise an examination, irrespective of whether a person had been charged. A stated purpose of the CAR Act was to "provide for the confiscation, without requiring a conviction, of property of a person" [s. 3(a)]. This was supported by the fact that the jurisdiction was enlivened on a finding in relation to "serious crime related activity", which applied regardless of whether a person had been charged, tried, convicted or acquitted [s. 6].
Of particular importance in the majority's view was s. 63 of the CAR Act, which provides:
"The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which the Supreme Court may stay proceedings under this Act that are not criminal proceedings."
Justices Gageler and Keane considered that refusing an examination only because there are criminal proceedings on foot would be inconsistent with the intention of this section.
Crucial to the reasoning of the majority was that, unlike in X7, the examination was to be conducted before the Supreme Court, rather than before a member of the Executive. The majority were confident that the Supreme Court would have power to "take appropriate action to prevent injustice" (Lee (no. 1) at ). Justice Crennan noted that the Supreme Court would have power to adjourn the proceedings, conduct them in private, disallow questions and make such other orders as necessary to safeguard the examinee's trial.
The minority strongly maintained their view, as they had stated in X7 that conducting an examination when charges were pending would fundamentally alter the process of criminal justice. While the relevant provisions did reveal an intention to remove the privilege against self-incrimination, this did not necessarily mean in all circumstances, including where a person had been charged but not yet tried. Accordingly, the minority held that the statutory provisions did not reveal the necessary implication required.
The majority accepted that requiring a person to answer questions in relation to a pending criminal charge would indeed affect the accusatorial nature of the trial. However, the majority tended to characterise this impact as the "loss of a forensic advantage". Justice Kiefel in the minority considered that describing the impact as a "loss of forensic advantage" tended to trivialise the effect the examination would have.
The majority accepted that in some circumstances there could be an interference with the administration of justice, and the Court may need to stay proceedings (for example where a criminal trial was imminent). However, ordering an examination when there were criminal proceedings on foot did not of itself give rise to a real risk of interfering with the administration of justice.
Cases since X7 and Lee (no. 1)
X7 was not overruled by Lee (no. 1) and it remains good law. X7 has been applied by the High Court in a number of subsequent cases.
In Lee v The Queen  HCA 20 ("Lee (no. 2)") the appellants in Lee (no. 1) returned to the High Court. In 2009, prior to the confiscation proceedings at issue in Lee (no. 1), and prior to being charged with any offence, the appellants had been examined by the NSWCC. A direction was made that the evidence they gave should not be "published" except as specified by the NSWCC. The appellants were subsequently charged with drugs, firearms and money laundering charges.
A solicitor from the DPP requested a copy of the transcripts of evidence, in order to identify what may be said by way of defence to the charges, and these were supplied by the NSWCC. The appellants were found guilty of drugs and firearms charges, and appealed. The High Court unanimously allowed the appeal.
The purpose of the non-publication direction was to protect the fair trial of a person "who may be charged". Given this purpose, the NSWCC would usually be required to "quarantine" evidence given by a witness from those involved in the prosecution of those charges.(Lee (no.2) at ) The NSWCC failed to consider this purpose when providing the transcript to the DPP. The Court held the decision to publish was therefore not authorised by the NSWCC Act and was "in law, no decision at all". (Lee (no. 2) at ) The High Court relied expressly on the reasoning in X7. It was not a question of considering whether there was practical unfairness to the accused. The appellants' trial was altered in a fundamental respect.
It is not straightforward to reconcile the effect of these decisions. However, some principles are clear:
- The legislature may expressly provide that a person charged with an offence can be subject to compulsory examination. This is subject to any constitutional constraints.
- Whether statutory provisions permit the compulsory examination of a person charged with an offence is a matter of statutory interpretation.
- An examination carried out by a court, as opposed to a member of the Executive, is less likely to prejudice the accused and thereby interfere with the administration of justice.
- The decision to disseminate evidence obtained by compulsory examination must be considered in light of the prejudice it may cause to the accused; unlawful dissemination of material is likely to fundamentally affect the criminal process.
- Postponement of the examination may be required in some circumstances to avoid prejudice to the accused.
The writer gratefully acknowledges the substantial contribution of Naomi Malhotra to this paper.