Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Limited (No 39) [2022] FCA 805

ORDERS

THE COURT MAKES THE FOLLOWING RULINGS:

1.    The document marked MFI-R265 be received into evidence and marked Exhibit R265.

2.    The document marked MFI-A188 be received into evidence and marked Exhibit A188.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is a ruling with respect to an application by the applicant to tender in evidence in the trial, a redacted version of an interview of Person 24 by an Assistant Inspector-General of the Australian Defence Force (Assistant IGADF) (MFI A188), and a ruling with respect to an application by the respondents to tender in evidence in the trial, a redacted version of an interview of Person 27 by an Assistant IGADF (MFI R265). The matters were dealt with together because one issue, in particular, is common to both matters.

The Evidence on the Applications

2    On the application with respect to Person 24 and MFI A188, the applicant tendered an affidavit of Ms Stacey Hahn, affirmed on 10 June 2022. Ms Hahn is a senior lawyer with the Australian Government Solicitor. On the basis of information provided to her by the Assistant IGADF, Major General the Honourable Paul Brereton AM RFD, Ms Hahn deposes to the fact that Person 24 was not given a notice requiring his appearance to answer questions before the Assistant IGADF pursuant to s 23(3) of the Inspector-General of the Australian Defence Force Regulation 2016 (Cth) (the IGADF Regulation).

3    For their part, the respondents relied on two documents produced on subpoena by the IGADF, namely, a document titled “Rights and Obligations of Witnesses involved in Inspector-General of the Australian Defence Force (IGADF) Inquiries” (Rights and Obligations Notice) and the first five pages of the transcript of interview (with minor redactions) which records advice given to Person 24 before he was asked questions about the substantive matters which were the subject of the Inquiry.

4    XXXX XXXXXXXXXXXXXX XXXXXXXXX XXXXXXX XXXXXXXXXXXXXXXX XX XXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXX XXXX XXXXXXXXX XX XX X X XXXXXXXXXXXXXX X XXXXXXXXXXXXXX XXXXXXX X X X X X XX X X X XX X X X XXXXXXXXXX XXXXXXX XX X XXXXXXXXXXXXXXXXXX XXXXXXXXXXX XXXXXXX XXXXXXXXXX XXXXXXXX XXXXXXXXX XXXXX

5    It seems that prior to the hearing, Person 24 was given the Rights and Obligations Notice. That notice contains, amongst other pieces of information, the following statement:

Self-incrimination and protections

Under s 32 of the IGADF Regulation (and s 124 of the Defence Act 1903), a person is not excused from giving information, producing a document or thing or answering a question under section 22 or 23 on the ground that the information, the production of the document or thing, or the answer to the question, might tend to incriminate the person or expose the person to a penalty - unless the person has been the person has actually been charged with a relevant offence and the charge has not been finally dealt with or disposed of. However, in the case of an individual (but not a corporation), the information given or the document or thing produced, and giving the information or producing the document or thing, and any information document or thing obtained as a direct or indirect consequence of giving the information or producing the document or thing, are not admissible in evidence against the individual in any civil or criminal proceedings in any federal court or court of a State or Territory, or proceedings before a service tribunal, other than proceedings by way of a prosecution for giving false testimony in the inquiry.

6    The applicant made the point that Person 24 was not compelled to give evidence. That is true in the sense that, as I have already said, he was not given a notice under the IGADF Regulation. The applicant also submitted that Person 24 was given an opportunity to file an affidavit, but did not do so. In those circumstances, the applicant submitted, it could not be inferred that Person 24 considered that he had no choice but to answer the questions he was asked. I reject that submission. I infer XXXXX XXXXXXXX XXX X X X X that Person 24 considered that he had no choice but to answer the questions he was asked.

7    On the application with respect to Person 27 and MFI R265, Ms Hahn’s affidavit establishes that Person 27 was given a notice requiring his appearance to answer questions before the Assistant IGADF pursuant to s 23(3) of the IGDAF Regulation, dated 14 September 2017. In addition, Person 27 sought to rely on an affidavit of his previous counsel. However, I reject the tender for the reasons which are set out below.

8    The evidence in MFI A188 and MFI R265 is undoubtedly relevant (s 56 of the Evidence Act 1995 (Cth)) and the issue is whether the evidence is inadmissible by reason of certain legislative provisions.

The Relevant Legislative Provisions

9    Those opposing the tender in each case relied on provisions in the Defence Act 1903 (Cth) and the IGDAF Regulation.

10    The Assistant IGADF was appointed by the Inspector-General ADF under s 110P of the Defence Act. He was directed to conduct an Inquiry into a matter concerning the Defence Force, namely whether there is any substance to rumours of criminal or unlawful conduct by or concerning Australian Defence Force Special Operations Task Group (SOTG) deployments in Afghanistan during the period 2005–2016.

11    Section 124 appears in Part XI of the Defence Act. The Part is entitled “Regulations” and s 124(1) confers a broad regulation-making power on the Governor-General. Section 124(2CA) provides as follows:

If a witness makes a statement or disclosure in the course of giving evidence before the Inspector-General ADF or a person appointed under section 110P:

(a)    the statement or disclosure; and

(b)    the making of the statement or disclosure; and

(c)    any information, document or thing obtained as a direct or indirect consequence of making the statement or disclosure;

are not admissible in evidence against the witness in:

(d)    any civil or criminal proceedings in any federal court or court of a State or Territory; or

(e)    proceedings before a service tribunal;

other than in proceedings by way of a prosecution for giving false testimony at the hearing before the Inspector-General ADF or person appointed under section 110P.

12    Section 124(2CA) was inserted into the Defence Act by the Defence Legislation Amendment (Military Justice Enhancements—Inspector-General ADF) Act 2015 (Cth). That amendment Act also inserted ss 124(2AA) and 124(2AB) into the Defence Act. Those subsections are in the following terms:

(2AA)    Subject to subsection (2B), the power to make regulations for the purposes of paragraph (1)(h) [procedures, powers and reporting obligations of the Inspector-General ADF] includes the power to make regulations requiring a person appearing as a witness before the Inspector-General ADF to answer a question even if the answer to the question may tend to incriminate the person.

(2AB)    Subject to subsection (2B), the power to make regulations for the purposes of subsection 110P(3) [roles, functions and powers of, inter alia, Assistant IGADF] includes the power to make regulations requiring a person appearing as a witness before a person appointed under section 110P to answer a question even if the answer to the question may tend to incriminate the first-mentioned person.

13    The respondents submit that s 124(2CA) is to be construed having regard to the fact that it was part of a package of amendments which included s 124(2AA) and (2AB). On the face of it, the subsections together appear to be designed to achieve what the existing subsections, that is, subsections 124(2A), (2B) and (2C), achieve in relation to inquiries other than certain nominated inquiries, including inquiries by the IGADF under Part VIIIB of the Defence Act. Subsection 124(2CA) is not a regulation-making power in the same way as subsection 124(2C) is not a regulation-making power. However, they are each coupled with a subsection or subsections — subsection 124(2CA) with subsections 124(2AA) and 124(2AB) and subsection 124(2C) with subsection 124(2A) — that in relation to identified inquiries, provide that regulations may abrogate the privilege against self-incrimination. They provide protection against other use of a type commonly provided where the privilege is abrogated for certain purposes.

14    The IGADF Regulation is an instrument made under the Defence Act. Section 24 of the Regulation provides as follows:

The Inspector-General ADF may, in writing, authorise an inquiry officer, or an Assistant IGADF, to exercise the powers of the Inspector-General ADF under section 22 or 23 in relation to an inquiry if:

(a)    the inquiry officer has been appointed to conduct, or the Assistant IGADF has been directed to conduct, the inquiry; and

(b)    the inquiry is of a kind to which section 22 or 23 applies.

15    The Inquiry in this case is of a kind that falls within s 23 and not s 22. It is clear from the notice given to Person 27, which is an annexure to Ms Hahn’s affidavit, that the Assistant IGADF has been authorised in writing under s 24 of the IGADF Regulation by the Inspector-General of the ADF to exercise the powers of the IGADF under s 23 of the IGADF Regulation.

16    Section 23 of the IGADF Regulation is in the following terms:

(1)    This section applies in relation to the following kinds of inquiry:

(a)    an inquiry into the death of a member of the Defence Force, where the relevant death appears to have arisen out of, or in the course of, the member’s service in the Defence Force;

(b)    an inquiry into a matter concerning the Defence Force, if the Minister or the Chief of the Defence Force has directed the Inspector-General ADF to inquire into the matter.

(2)    The Inspector-General ADF may give a notice to a person under subsection (3) if the Inspector-General ADF has reason to believe that the person has information or a document or thing that is relevant to the inquiry.

Note:    See section 24 for when an inquiry officer or an Assistant IGADF may exercise this power.

(3)    The Inspector-General may, by written notice given to the person, require the person:

(a)    to give any such information to the Inspector-General ADF, an inquiry officer or an Assistant IGADF; or

(b)    to produce any such document or thing to the Inspector-General ADF, an inquiry officer or an Assistant IGADF; or

(c)    to appear before the Inspector- General ADF, an inquiry officer or an Assistant IGADF to answer questions.

Note:    For self-incrimination, see section 32.

(4)    The notice must:

(a)    if paragraph (3)(a) or (b) applies:

(i)    specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and

(ii)    specify the manner in which the person is required to comply with the notice; and

(b)    if paragraph (3)(c) applies—specify a time and place at which the person is to appear; and

(c)    in any case—state the effect of section 29 (offence for failure to comply).

Oath or affirmation

(5)    The Inspector-General ADF may require answers provided under paragraph (3)(c) to be verified by, or given on, oath or affirmation and either orally or in writing.

(6)    The Inspector-General ADF, or the inquiry officer or Assistant IGADF to whom information or answers are verified or given, may administer the oath or affirmation.

17    Section 32 of the IGADF Regulation provides as follows:

(1)    A person is not excused from giving information, producing a document or thing or answering a question under section 22 or 23 on the ground that the information, the production of the document or thing, or the answer to the question, might tend to incriminate the person or expose the person to a penalty.

(2)    However, in the case of an individual:

(a)    the information given or the document or thing produced; and

(b)    giving the information or producing the document or thing; and

(c)    any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or thing;

are not admissible in evidence against the individual in any civil or criminal proceedings in any federal court or court of a State or Territory, or proceedings before a service tribunal, other than proceedings by way of a prosecution for giving false testimony that relates to section 22 or 23.

Note:    For immunity in relation to the use and the derivative use of a statement or disclosure made in the course of giving evidence, the making of the statement or disclosure, and any information, document or thing obtained as a direct or indirect consequence of making the statement or disclosure, see subsection 124(2CA) of the Act.

(3)    Despite subsection (1), a person is not required to answer a question if the answer to the question might tend to incriminate the person in respect of an offence with which the person has been charged and in respect of which the charge has not been finally dealt with by a court or otherwise disposed of.

18    Some aspects of s 32 of the IGADF Regulation should be noted at this stage. First, the regulation is an exercise of the regulation-making power in the Defence Act. Secondly, subsection (1) refers to giving information, producing a document or thing or answering a question under s 23. By contrast, subsection (2) refers only to information, document or thing and not to answering questions. Although I did not receive detailed submissions on the point, it would seem that giving information is different from answering questions (see, for example, the terms of s 23(3) of the IGADF Regulation) and the protection in terms of the transcript of answers given during an interview is to be found, not in s 32(2) of the IGADF Regulation, but in s 124(2CA) of the Defence Act. That was the basis upon which the respondents proceeded and no other party or person put a contrary position.

19    I turn now to consider the admissibility of the transcripts of interview. It is convenient to begin with Person 27 and MFI R265.

Person 27

20    As I have said, Person 27 was called as a witness by the applicant. He was cross-examined by counsel for the respondents and then his cross-examination was adjourned. Although he was allowed to leave the witness box, he was not released while the respondents sought, by subpoena, the production of the transcript of his interview by the Assistant IGADF. A redacted transcript of his interview was subsequently produced by the IGADF and there was then further cross-examination of Person 27 by reference to that transcript by counsel for the respondents. In particular, Person 27 was asked about the evidence he had given before the Assistant IGADF compared with the evidence he had given before this Court. At the conclusion of Person 27’s cross-examination, counsel for the respondents sought to tender the transcript of interview. Counsel for the applicant asked that the issue be deferred so that he could consider whether there was a basis to oppose the tender having regard to the decision of the Full Court of this Court in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68; (2022) 400 ALR 56 (Herron), handed down on 29 April 2022. I deferred the tender of the transcript.

21    The parties made submissions as to the tender of the transcript of Person 27’s interview by the Assistant IGADF on 3 June 2022 and on 24 June 2022. Counsel for the respondents pressed the tender and it was opposed by counsel for the applicant. Counsel for Person 27 sought and was given leave to be heard on the tender of the document. Person 27 opposed the tender of the transcript of interview.

22    Person 27 was represented by counsel during the course of his evidence. That counsel sought and was given leave to withdraw at the hearing on 24 June 2022 and a different counsel appeared for Person 27 on that date. The first counsel sought leave to withdraw because he had sworn an affidavit which Person 27 sought to rely on at the hearing on 24 June 2022. As it happened, the argument to which that affidavit, which was marked for identification, was directed was not advanced by the respondents. In those circumstances, I reject the tender of the affidavit on the basis that it is not relevant. The argument advanced by Person 27 against the tender of the transcript of his interview by the Assistant IGADF is essentially the same as the argument advanced by the applicant.

23    The issue dealt with in Herron which is of present relevance is whether evidence given or a document produced to a Royal Commission under the Royal Commissions Act 1923 (NSW) was subject to the protection in s 17(2) of that Act in circumstances where the person giving the evidence or producing the document is a witness, but not a defendant in a subsequent proceeding. Section 17 of the Royal Commissions Act was in the following terms, relevantly:

(1)    A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate him, or on the ground of privilege, or on any other ground.

(2)    An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

 (3)    Nothing in this section shall be deemed to render inadmissible:

(a)    any answer, document or other thing in proceedings for an offence against this Act,

(b)    any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1),

(c)    any book, document, or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

(4)    This section shall not have effect unless in the letters patent by which the commission is issued, or in other letters patent under the Public Seal, the Governor declares that the section shall apply to and with respect to the inquiry.

24    The Court in Herron held that the prohibition against admissibility in s 17(2) applied to, inter alia, a person who is a witness and not merely to a person who is a defendant in subsequent civil or criminal proceedings. It is not necessary to discuss that aspect of the reasoning in Herron because no party made a submission that Herron could be distinguished from the circumstances of this case. Person 27 as a witness in this proceeding is entitled to the protection afforded by s 124(2CA). The issue in this case is the extent of that protection.

25    The respondents submit that the extent of the protection in s 124(2CA) of the Defence Act is commensurate with the privilege against self-incrimination. The submission is that it is the privilege against self-incrimination which is abrogated by s 124(2AB) of the Defence Act and s 32(1) of the IGADF Regulation and it is with respect to evidence otherwise privileged that the protection in s 124(2CA) applies and no further. In other words, the respondents submit that only evidence before the Inquiry where the privilege might otherwise be taken is protected. It follows, on the respondents’ argument, that the test for the application of s 124(2CA) requires the Court in subsequent proceedings to characterise the evidence before the Inquiry as evidence in respect of which, had the privilege against self-incrimination been available, the privilege could have been successfully claimed.

26    It should be noted that unlike s 32(1) and (2) of the IGADF Regulation where there is a link between the matters dealt with in the subsections, in other words, the abrogation and the protection (provided at least by the word, “However”), s 124(2CA) of the Defence Act is expressed in terms wide enough to protect any statement or disclosure before the Assistant IGADF whether it might otherwise have been privileged or not. However, neither the applicant, the respondents nor Person 27 argued that the subsection was to read other than in the context of and by reference to an abrogation of the privilege against self-incrimination. I consider that approach to be correct.

27    The applicant and Person 27 nevertheless submit that the test postulated by the respondents is not the correct test. They submit that the protection afforded by s 124(2CA) of the Defence Act (and indeed, s 32(2) of the IGADF Regulation, had that been relevant) is a blanket one because, but for the notice pursuant to s 23(3) of the IGADF Regulation, Person 27 would not have attended at the Inquiry and there would be no evidence of any nature admissible against him. In other words, even if the evidence is not evidence in respect of which the privilege against self-incrimination could otherwise have been claimed, it is not admissible by reason of s 124(2CA).

28    The applicant and Person 27 rely on what Rares J said in Herron (Wigney J agreeing at [237]) in support of their submission that the protection provided is a blanket one. They referred to the observations at [133]–[140]. In particular, they point to the following passages (at [88] and [138]):

88    Even though, as discussed in Lee J’s reasons, the consequence of ss 8 and 56 of the Evidence Act is that s 17(2) of the NSW Act did not have any operative effect in this Court, Mr Herron and Dr Gill gave evidence and produced documents to the Royal Commission under the compulsion of s 17(1) and in the circumstances that they could expect that s 17(2) would apply to that evidence and those documents in the future. Indeed, at the time they did so, the enactment of the Evidence Act was over 5 years in the future.

…

138    It follows that the proper construction of s 17(2) is the same as Brennan J held for s 6DD (154 CLR at 228), namely:

The occasion for its application is the tendering against a witness (i.e., a witness who has given evidence before a Commonwealth commission) of evidence of what the witness stated or disclosed in the course of giving his evidence before the commission. The section requires the court to refuse admission in evidence of any such statement or disclosure.

(emphasis added)

The observations of Brennan J (as his Honour then was) referred to in [138] in Herron were made in Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212.

29    In my opinion, Herron does not provide the answer to the issue which I am now considering. The Full Court made it clear that a witness ought to have the same protection as they would have had they been asked the question(s) for the first time before the Court. On that basis, the protection extends no further than evidence which might otherwise be privileged. For example, Rares J said (at [111], [115] and [135]):

111    … But, the wording of both s 6DD of the Commonwealth Act and, importantly here, s 17(2) of the NSW Act, is not limited to prevent the subsequent admissibility of the evidence of, or a document produced by, the witness before a Royal Commission in a criminal proceeding against the witness. That is because each section proscribes use of the witness’ evidence or document that he or she produced under compulsion to a Royal Commission in both criminal and civil proceedings. Moreover, the witness may not be the accused or defendant in the subsequent curial proceeding, but a witness in it who, surely, must be able to retain the right to invoke his or her privilege against self-incrimination if asked about what he or she said in giving evidence, or whether he or she produced a document, to a Royal Commission under compulsion.

…

115    It cannot have been the legislative intention that the witness who gave the compelled evidence or produced the compelled document to a Royal Commission could not object in other proceedings, on any ground that s 17(1) of the NSW Act or its analogues had abrogated, if subsequently he or she is called to give evidence, or required to produce or identify himself or herself as the source of, or being connected to, the compelled production of the document to the Royal Commission: cf Sorby 152 CLR at 294–295, 300 per Gibbs CJ, 305, 310–311 per Mason, Wilson and Dawson JJ, 311–312, 313 per Murphy J and see too at 324 per Brennan J.

…

135    The policy purpose of s 17(1) of the NSW Act, and its analogue in the Commonwealth Act, is to enable a witness to be compellable to give evidence to the Royal Commission that he or she could not, or as a matter of discretion would not, be compelled to give in any judicial proceeding because the person could assert a common law or statutory privilege, such as legal professional or client legal privilege, the privilege against self-incrimination or self-exposure to a penalty, the privilege attaching to without prejudice communications to settle disputes, the rules of law and equity protecting confidential information, trade secrets, the identity of informers and the common law rule of practice known as “the newspaper rule”, now found in ss 126J and 126K of the Evidence Act, protecting the disclosure of a journalist’s sources of information: see McGuinness v Attorney-General (Vic) (1940) 63 CLR 73; John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346.

30    I am unable to discern anything in the text of the relevant provisions which supports the argument advanced by the applicant and Person 27. The construction advanced by the respondents is supported by the use in s 124(2CA) of the word “against” in the phrase “admissible in evidence against the witness” and is logical and coherent and, although from time to time there may be difficult questions as to the evidence which might otherwise have been the subject of a claim for the privilege against self-incrimination before the Inquiry, that prospect is not a reason to reject the construction advanced by the respondents.

31    As it happened in this case, no party or person contended that Person 27 could otherwise have claimed the privilege against self-incrimination with respect to his evidence to the Assistant IGADF and, in those circumstances, s 124(2CA) does not stand in the way of the evidence being tendered.

32    The evidence is admissible and MFI R265 will become Exhibit R265.

Person 24

33    There are two differences between Person 24 and Person 27. First, Person 24 did not receive a notice under s 23(3) of the IGADF Regulation. The arrangements for his attendance were informal. Secondly, the respondents, in this case the party opposing the tender, did identify answers given by Person 24 to the Assistant IGADF which they submitted would otherwise have been the subject of a proper claim for the privilege against self-incrimination XXXXX XXXXXXXXXXXXX XXXXXXXXXXX XXXX

34    The respondents relied on s 124(2CA) of the Defence Act. They did not rely on any provision of the Evidence Act in opposition to the tender. Their argument was restricted to the proposition that Person 24 was, in substance, and for all practical purposes, compelled to answer the questions of the Assistant IGADF. Any formal defects in the notice procedure were not material. The respondents submitted that Person 24 reasonably believed that he was required to answer the questions asked of him. I have already made a finding in relation to Person 24’s state of mind.

35    Person 24’s counsel supported the argument advanced by the respondents (subject to one matter) and raised two other grounds upon which the evidence should be excluded, that is, ss 135(a) and 138 of the Evidence Act. Whereas the respondents accepted that s 124(2CA) was to be read in the context of the provisions dealing with the privilege against self-incrimination and as part of the legislative treatment of the abrogation of the privilege, counsel for Person 24 submitted that the subsection was to be read without qualification and that it is clear in its terms. I do not accept Person 24’s submission. Section 124(2CA) operates in a context of compulsion and an abrogation of the privilege against self-incrimination.

36    In my opinion, the respondents’ submission must be rejected. I do not consider the Defence Act or the IGADF Regulation contain scope for a notion of substantial compulsion or compulsion in substance. Section 23(3) and (4) of the IGADF Regulation provide for a precise procedure for engaging the obligation to appear before an Assistant IGADF for the good reason that failure to comply is a criminal offence (s 29). Having regard to the terms of s 23(3) and (4) of the IGADF Regulation, there is, in my opinion, no scope for an informal procedure to be included within the provisions.

37    I should indicate that had I accepted the respondents’ argument, I would also have accepted the respondents’ argument that the questions and answers they identified involved evidence in respect of which the privilege against self-incrimination may otherwise have been taken and the events at the trial in relation to s 128 of the Evidence Act (see transcript p 3448) provide support for that conclusion.

38    Person 24, but not the respondents, submitted that the transcript should not be admitted because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to him. He relies on s 135(a) of the Evidence Act which is in the following terms:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)    be unfairly prejudicial to a party …

39    The expression “probative value” is defined in the Dictionary to the Evidence Act as follows:

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

The Evidence Act does not contain a definition of “party”.

40    I have not yet heard closing submissions from the parties. It is the applicant who seeks to deploy the transcript against a witness called by the respondents. XXXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXX XXXXXXXXXXXXX XXXXXXXX XXXXXXXXXX XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXX XXXXX XXXXX XXXXXXXXX

41    Although it was not expressly articulated by counsel for Person 24, I assume the unfair prejudice to Person 24 is that evidence has been obtained from him which, but for an “impropriety”, would have carried with it the protection in s 124(2CA) of the Defence Act and, therefore, be inadmissible in evidence in this Court. I assume it is said that the admission of the evidence has the potential to lead to adverse findings against Person 24. Whether it is said that there is a possibility of other adverse consequences to Person 24 is unclear.

42    Although I have identified these issues, I do not need to pursue them to resolution because I do not think Person 24 is a “party” within s 135(a) of the Evidence Act.

43    As I have said, the word “party” is not defined in the Evidence Act. There is nothing in the Acts Interpretation Act 1901 (Cth) which assists. In my opinion, “party” in this particular context would ordinarily mean a party to a legal proceeding. Person 24 does not fall within this description.

44    Person 24 referred to the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in Rogerson v The Queen [2021] NSWCCA 160, not as an authority directly on point, but as an indication that “party” is used in a wider sense in that case to include a co-accused in a joint criminal trial. The Court of Criminal Appeal held that under s 135(a) of the Evidence Act 1995 (NSW), a co-accused is a “party” to a criminal proceeding against an accused. I do not think this decision advances Person 24’s argument because the situation of a co-accused in a joint criminal trial is quite a unique one where there is a pre-existing common law rule and observations of the Australian Law Reform Commission which supported the conclusion of the Court. In this respect, I note the following observations of the Court of Criminal Appeal (at [540]):

If the position at common law in Australia immediately prior to the passage of the Commonwealth and New South Wales Evidence Acts was, as appears to have been the case, that there was a discretion, albeit one carefully and cautiously to be exercised, to exclude evidence sought to be led by an accused because of its unfairly prejudicial effect on another co-accused in a joint trial, Mr Odgers SC’s argument based on Cornwell is not advanced. All that can be concluded is that the “broader view” of the s 135(a) discretion accords with the pre-existing common law position in Australia and is consistent with the intention of the ALRC.

45    Person 24 is not able to invoke s 135(a) of the Evidence Act. He is not a “party” within that paragraph.

46    Person 24 also sought to rely on s 138 of the Evidence Act in support of his submission that the transcript of interview of Person 24 ought not be admitted. That section is in the following terms, relevantly:

(1)    Evidence that was obtained:

(a)    improperly or in contravention of an Australian law; or

(b)    in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…

(3)    Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)    the probative value of the evidence; and

(b)    the importance of the evidence in the proceeding; and

(c)    the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d)    the gravity of the impropriety or contravention; and

(e)    whether the impropriety or contravention was deliberate or reckless; and

(f)    whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g)    whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h)    the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note:    The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.

47    Person 24’s submission is that the evidence in the transcript was obtained from him improperly or as a result of an impropriety and it should not be admitted. Counsel for Person 24 made it clear in the course of his submissions that he was not suggesting any deliberate or intentional impropriety. He submitted that that was not a necessary element for the operation of the section. That appears to be correct (Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 at [29]–[30] per French CJ). He submitted that whatever the precise reason for the events at the Inquiry — I had no evidence explaining the precise reasons for what occurred — unless the evidence is excluded under s 138, XXXXX XXXX XXXXXXXXXX XXXXXX Had Person 24 been given a notice under s 23(3) of the IGADF Regulation, his evidence, XXXXXXXXXXXXXXXX XXXXXXXX would not have been admissible in this trial.

48    These submissions do not avail Person 24 because, in my opinion, it is not open to him to seek to engage the provisions of s 138. He is not a party to this proceeding and the bulk of the matters identified in s 138(3) (albeit not exhaustive) seem to me to be directed to the parties and are matters in which they have the most direct interest.

49    For completeness, I mention that even if Person 24 was able to engage s 138, there are difficulties accepting arguments he advanced in connection with some of the matters in s 138(3) of the Evidence Act. With respect to paragraph (f), Person 24 relied on the right or privilege against self-incrimination in the International Covenant on Civil and Political Rights. However, an examination of that instrument indicates that the right identified by Person 24 (Article 14(3)(g)) would not appear not to be relevant in this case because it is a right of a person “[n]ot to be compelled to testify against himself or to confess guilt” in “the determination of any criminal charge against him”. This proceeding does not concern the determination of a criminal charge against Person 24. Secondly, Person 24 submitted that it would have been quite easy for the Assistant IGADF to comply with s 23(3) of the IGADF Regulation and that circumstance is a factor under s 138(3)(h) weighing against the admission of the evidence. That apparently simple proposition raises a number of questions. First, it is not the case that ease of compliance automatically favours exclusion and it may, depending on any associated mental element, point towards admission. Second, and perhaps unusually, the issue here is not that the evidence could be obtained in another way. The Assistant IGADF may have issued a notice under s 23(3) and (4) of the IGADF Regulation. Had he done so, he would have obtained the evidence, as he in fact did, but it would have come with the protection of s 124(2CA) of the Defence Act, which means that the incriminating evidence would not have been admissible in this proceeding. I raise these points to illustrate that even if I had held that Person 24 had the right to engage s 138, there would have been a number of other issues to address.

50    The evidence is admissible and MFI A188 will become Exhibit A188.

51    The respondents and Person 24 asked me to receive into evidence in the trial, the documents marked VD1 and VD2 in relation to Person 24 in the event that I admitted MFI A188 into evidence. The applicant does not object to that course and VD1 will be admitted and marked Exhibit R289 and VD2 will be admitted and marked Exhibit R290.

Associate:     

Dated:    22 July 2022

SCHEDULE OF PARTIES