Category Archives: s. 128A

Lee v New South Wales Crime Commission [2013] HCA 39 (9 October 2013)

Statutes – Interpretation – Recovery of proceeds of crime – Examination orders – Appellants charged with offences – New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) – Subject matter of examination would have overlapped with subject matter of criminal proceedings – Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged.

Words and phrases – “accusatorial system of criminal justice”, “derivative use immunity”, “direct use immunity”, “examination”, “fair trial”, “principle of legality”, “privilege against self-incrimination”, “real risk of interference with the administration of justice”, “right to silence”, “serious crime related activity”.

Criminal Assets Recovery Act 1990 (NSW), ss 12, 13, 13A, 31D, 63.


EVIDENCE – facts excluded from proof – on grounds of privilege – self-incrimination – disclosure of the redacted information would not materially assist plaintiff but may, by virtue of s 128A(8) of the Evidence Act 1995 (NSW), impede, and not materially assist, the conduct of criminal or other proceedings – whether an order under s 128A(6) of the Evidence Act 1995 (NSW) should be granted – whether a certificate under s 128A(7) of the Evidence Act 1995 (NSW) should be granted.

Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562 (30 May 2012)

PRACTICE AND PROCEDURE – Stay of proceedings – whether civil proceeding should be stayed pending determination of criminal proceeding relating to the same subject matter – whether real risk of prejudice – application and ambit of McMahon v Gould guidelines – previous breach of undertaking by respondent to stay application, who provided statement of claim to police – risk of further disclosures – applicants for stay impecunious – burden of concurrent civil and criminal proceedings

Suzlon Energy Ltd v Bangad [2011] FCA 1152 (7 October 2011)

PRIVATE INTERNATIONAL LAW – notice to produce served on foreign bank challenging service on it out of the jurisdiction under r 10.43 of Federal Court Rules 2011 (Cth) – whether foreigner should be subject to compulsory process of the Court – principle of restraint in permitting use of court process against foreigner challenging service out of jurisdiction from being required to produce evidence supporting that extraterritorial service – whether notice to produce should be set aside or compliance not be required in the circumstances

INTERNATIONAL LAW – documents sought in notice to produce related to financial transactions between foreign bank and customer – production of documents likely to involve foreign bank in a contravention of Swiss banking secrecy and criminal laws – principles in respect of attempts to use court processes to obtain documents from international banks so as to avoid the risk of jurisdictional conflicts – whether notice to produce should be set aside or compliance not be required the circumstances

PRACTICE AND PROCEDURE – notice to produce – application by foreign bank to set aside or excuse obligation to comply with notice to produce under r 30.28 of Federal Court Rules 2011 (Cth) – notice to produce has same coercive effect as subpoena – whether notice to produce can be served on a foreigner contesting jurisdiction

51. It is a fundamental principle of the Australian common law that, in the absence of a statutory exception, a person cannot be compelled to incriminate himself or herself. Toohey, Gaudron, McHugh and Gummow JJ held in Reid v Howard (1995) 184 CLR 1 at 14 that there is simply no scope for an exception to the privilege against self-incrimination, other than by statute. While the Evidence Act 1995 (Cth) provides some safeguards for persons who are compelled under ss 128 and 128A of that Act to respond to questions the answers to which may incriminate them, those safeguards would be of no avail to anyone defending charges of contravening Art 47 or Art 273 in a Swiss court. And, as Lehane J said in Bank Leumi 69 FCR at 545C:

“It is, in general terms, unexceptionable, as an exercise of discretion, to refuse specific relief if that relief would compel a breach of the law: see, eg, Pottinger v George (1967) 116 CLR 328 at 337. Indeed, in Rowell v Pratt [1938] AC 101 at 106, Lord Wright said bluntly that a judge “cannot compel a man to commit a criminal offence”. I cannot think it is a wrong exercise of discretion to take into account that specific relief, or relief having a similar practical effect, may compel conduct which is in breach of foreign law; thus I think that the judge was right in having regard to Swiss law in considering the appropriate remedy.”

Specialty Fashion Group Limited v Muirhead Nominees Pty Ltd & Ors [ 2009] NSWSC 754 (29 July 2009)
CONSENT ORDERS – Where parties draft a consent order for disclosure of information – Parties represented – Presumption of informed consent when no evidence otherwise
CONTEMPT – Preliminary application that order ambiguous and unable to sustain a finding of contempt

Evidence Act 1995, s 128A

Specialty Fashion Group Limited v Muirhead Nominees Pty Ltd & ors [2009] NSWSC 515 (9 June 2009)

[2009] NSWSC 515

PROCEDURE – Setting aside orders – disclosure order provided for protection against self incrimination in terms of s 87 of the Civil Procedure Act 2005 – s 87 no longer applies if s 128A of the Evidence Act 1995 applies – whether order irregular and should be set aside – whether portion of order should be treated as struck out with s 128A then applying of its own motion

Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477 (24 December 1993)

[1993] HCA 74

Evidence – Privilege – Self-incrimination – Self-exposure to penalty – Whether privilege against self-incrimination applies to corporations Statutory power to require production of documents – Whether available after commencement of proceedings – Notice to produce pursuant to rules of court served on corporation after issue of statutory notice – Whether abuse of process – Whether corporation obliged to produce – Clean Waters Act 1970 (N.S.W.), s. 29(2)(a).

Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009)

[2009] VSC 381

Warren CJ

HUMAN RIGHTS – Right not to be compelled to testify against oneself or to confess guilt – Right to a fair hearing – Privilege against self-incrimination – Use of evidence derived from compelled testimony – Derivative use immunity – Whether derivative use immunity part of right against self-incrimination – Whether derivative use immunity part of right not to be compelled to testify against oneself or to confess guilt and right to a fair hearing.

STATUTORY INTERPRETATION – Major Crime (Investigative Powers) Act 2004 ss 9(2)(g), 39(1) – Charter of Human Rights and Responsibilities 2006 ss 7(2), 24(1), 25(2)(k), 32 – Principles of statutory construction – Whether limitation on right demonstrably justified in a free and democratic society – Whether right can be interpreted consistently with the purpose of the Major Crime (Investigative Powers) Act 2004.

27 Neither party properly addressed the current Victorian evidence statute, the Evidence Act 1958. The intervener adverted in passing to the Commonwealth Act (presumably in anticipation of the Evidence Act 2008 yet to fully operate in Victoria). The applicant made no submissions in this regard. So far as may be relevant, now or later, I observe that direct use and derivative use immunity arise under s 128A(8) of the Evidence Act 1995 (Cth) which provides:

In any proceeding in an Australian court— (a) evidence of information disclosed by a relevant person in respect of which a certificate has been given under this section; and

(b) evidence of any information, document or thing obtained as a direct result or indirect consequence of the relevant person having disclosed that information—cannot be used against the person … However, this does not apply to a criminal proceeding in respect of the falsity of the evidence concerned (emphasis added).

67 The applicant’s second argument is also problematic. At common law, the trial judge retains a number of residual discretions to exclude evidence at trial in certain circumstances. A trial judge may exclude evidence on the ground that the effect of the evidence outweighs its probative value. So far as may be relevant later, a similar discretion is contained in the  Evidence Act 2008  (‘the Evidence Act’).[68] A trial judge also retains a residual discretion to exclude evidence if receipt of the evidence would result in an unfair trial. That discretion is rarely exercised outside the context of confessions.[69] Similarly, the Evidence Act directs that evidence of an admission may be excluded if ‘having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence’.[70] Finally, there is a common law discretion to exclude illegally or improperly obtained evidence.[71]

68 These discretions do not focus on the way in which the evidence in question was obtained, but rather on whether the use of the evidence is prejudicial or unfair, for example because the evidence is unreliable. [72] Whilst it is recognised that a trial judge is able to exclude derivative evidence on any of these bases, such exclusion remains entirely discretionary, there being no guarantee (as required by s 25(2)(k) of the Charter) that the discretion will be exercised in any given instance.

69 The ordinary rules of evidence very often would not exclude derivative evidence of the kind that is likely to arise in the process of an investigation to which a coercive powers order relates. There do not appear to be any reported cases where derivative evidence has been excluded for such reasons. The unfairness discretion contemplates confessions, which are ‘direct’ in nature, and therefore inadmissible in any case. It is highly unlikely that derivative evidence obtained under the Act would be excluded because it was obtained illegally; any such evidence would necessarily have been obtained legally pursuant to clear statutory authorisation under the Act.

164 To recapitulate, the applicant has not justified why any further limitation is appropriate. The applicant made limited submissions with regard to s 7. These are insufficient to meet the very stringent threshold I have described. I am not satisfied that the comments of Murphy J in Hamilton or LaForest J in Thompson provide any clear basis on which a further limitation might be justified. Furthermore, I note that derivative use immunity is not uncommon in Australian statutory law. It is provided for, together with direct use immunity, in the Proceeds of Crime Act 2002,[152] the Health Insurance Act 1973,[153] the Quarantine Act 1908,[154] the Crimes Act 1914 (Cth)[155] and the Evidence Act 1995 (Cth).[156] These provisions have operated in this form for significant periods of time. It may be assumed that if they were unworkable, they would have been revisited, even removed, by the legislature.