VSC 381
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’). 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. 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’. Finally, there is a common law discretion to exclude illegally or improperly obtained evidence.
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.  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, the Health Insurance Act 1973, the Quarantine Act 1908, the Crimes Act 1914 (Cth) and the Evidence Act 1995 (Cth). 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.