F & Ors v National Crime Authority

(1998) 83 FCR 99

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(Judgment by: O'LOUGHLIN J) Court:

Judge:
O'LOUGHLIN J

Subject References:
NATIONAL CRIME AUTHORITY
Power to conduct hearings
whether power extends to persons suspect of having committed relevant offences
whether the fact of such suspicion amounts to a reasonable excuse for refusing to answer any question
privilege against self-incrimination
common law test
whether the same has been modified by statute
differences between "might incriminate", "may incriminate" "will incriminate" and "would incriminate"

Legislative References:
National Crime Authority Act 1984 (Cth) - the Act
National Crime Authority (State Provisions) Act 1984 (SA) - the Act
New South Wales Crime Commission Act 1985 - the Act

Case References:
Ganin v New South Wales Crime Commission - (1993) 32 NSWLR 423
Accident Insurance Mutual Holdings Ltd v McFadden - (1993) 31 NSWLR 412
The Queen v Boyes - (1861) 30 L.J.Rep.N.S. (QB) 301
Brebner v Perry - [1961] SASR 177
Sorby v Commonwealth - (1983) 152 CLR 281
C v National Crime Authority - (1988) 78 CLR 338
Pyneboard Pty Ltd v Trade Practices Commission - (1982-1983) 152 CLR 328
Rank Film Distributors Ltd v Video Information Centre - (1982) AC 380

Hearing date: 5 MARCH 1998
Judgment date: 22 APRIL 1998

ADELAIDE

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Judgment by:
O'LOUGHLIN J

Four men, who for the purpose of these proceedings are known as F, G, H and J, seek judicial review, pursuant to the provisions of s 32 of the National Crime Authority Act 1984 (Cth) ( "the NCA Act" ), of certain decisions that have been made by the respondent, the National Crime Authority ( "the Authority" ). Each of the applicants is (or at least at some earlier time was) a member of a particular motor-cycle gang ( "the gang" ). By agreement with counsel, the name of the gang, as well as the names of the applicants, have been suppressed from publication in an effort to ensure that neither the identity of the gang nor the identity of any of the men will be disclosed.

Initially F and G were summoned pursuant to s 17 of the National Crime Authority (State Provisions) Act 1984 (SA) to attend a hearing before the Authority on 30 January 1997. On that day, by prior arrangement, counsel appeared before Mr AG Melick, a member of the Authority, and submitted on behalf of F and G that the summonses were faulty. It was submitted that the State reference that had been granted to the Authority failed to inform the Authority and the persons who were summoned to appear before it, in precise detail, of the relevant issues and the purpose of the investigation. There was also in existence at that time a Commonwealth reference to the Authority that addressed the issues that were included in the State reference. Mr Melick found that the Commonwealth reference had not been attached to either of the two summonses. Although he did not find that omission to be a contravention of the provisions of the NCA Act (as to which I need not express an opinion) he nevertheless concluded that it would be more appropriate "to deal with this matter by way of a summons to which is attached notices of both Commonwealth and State references" . He went on to hold that neither of the men were required to appear pursuant to the respective summons. As a consequence of this finding, each summons was withdrawn.

On 27 March 1997, fresh summonses, annexing notices of both the Commonwealth and the State references relating to the particular investigation were served on F and G requiring each of them to attend a hearing before the Authority on 17 April 1997. On the same day, 27 March, H and J were also each served with summonses requiring their attendance before the Authority, also on 17 April 1997.

The four summonses were in identical form; they advised the addressee that the Authority was conducting special investigations into the matters that had been referred to it in the references from the Commonwealth and the State of South Australia. The respective notices also referred to other motor-cycle gangs in addition to the gang that is at the centre of these proceedings, but the other gangs need not be considered for the purpose of these reasons. In the case of the Commonwealth reference, the matters that were to be the subject of investigation by the Authority were whether the members of the gang may be, or may have been, involved in the unlawful importation and conveyance of cannabis, in defrauding the Commonwealth through tax evasion and in money laundering. The State reference that dealt with the gang raised issues of the unlawful supply of amphetamines and cannabis, living on the earnings of prostitution and money laundering.

Both the Commonwealth and the State notices contained an allegation that the activities that were described in the schedule to each notice (which are summarised above) involved the commission of "relevant offences" (that being a term that is defined in the NCA Act) involving, inter alia "two or more offenders and substantial planning and organization" . However, despite the width of the matters in the two references, each summons stated that the intended witness was required to give evidence on two subjects only. Those subjects were the alleged unlawful supply of amphetamines and cannabis by members of the gang and the "hierarchy, activities and financial affairs" of the gang. The addressee was also required to produce certain material at the hearing but no dispute presently arises in respect of that issue.

On the day appointed for the hearing, each man was sworn in as a witness but refused to answer any questions. On behalf of F and G, the same reason was advanced: it was said that a member of the staff of the Authority had indicated that she suspected that each witness "may have committed offences in relation to the matters included in the references" . The position with respect to H and J was different. They refused to answer questions because they understood that members of the staff of the Authority suspected that they "may have committed offences in relation to the matters included in the references" . Mr Melick in his reasons that were published on 17 July 1997, said that although no such indication had been given by members of the staff of the Authority in respect of H and J, he was nevertheless prepared to treat them as persons under suspicion for the purpose of his decision. It was acknowledged by the Authority from the outset that it suspected the first two applicants, F and G, of having committed one or other of the crimes that are the subject of the references. Although a like acknowledgment had not earlier been made in respect of the applicants H and J, this present application for a review has proceeded, by agreement with counsel, upon the premise that the Authority has the like suspicion in respect of all four applicants.

The particular question that was asked by Mr Melick of the applicant F that gave rise to these present proceedings was as follows:

Q

"Mr F are you a member of a motor cycle gang known as in the ... gang?"

A

"I decline to answer any question because I believe that you suspect I have committed an offence and therefore you are acting in excess of your jurisdiction. Any answer I may give may tend to incriminate me of an offence."

A question, in virtually the same terms, was asked of the other three applicants during their examinations and they each declined to answer for the same reason.

According to counsel for the applicants, there are two decisions that are now the subject of review. The first is said to be the decision to ask any questions at all of a person once the Authority suspects that person of having committed a relevant offence. The second decision was the decision to ask the specific question of each applicant "are you a member of a motor cycle gang known as the.... gang?" . It was not suggested by counsel for the Authority that the identification of the decisions was inadequate or inappropriate.

The first argument that was advanced on behalf of the applicants was to this effect: once the Authority had formed the suspicion that a person had committed a relevant offence, the power of any member of the Authority to examine that person on oath under s 28 of the NCA Act ceases. As part of that argument it was submitted that a person is entitled to refuse to answer any question on the ground that he or she was suspected of having committed a relevant offence. In other words, once a person becomes a suspect, the existence of that suspicion affords a "reasonable excuse" for not answering any question . Next, it was argued that the particular question that brought the hearings to a halt and that lead to the institution of these proceedings, was a question, the answer to which might tend to incriminate the witness, and each applicant was therefore entitled to refuse to answer the question.

Although there are four separate applicants, the facts relating to them are virtually identical. For that reason it will not be necessary to discuss them separately.

THE LEGISLATION

Before turning to a consideration of the arguments that were advanced on behalf of the applicants, it is necessary to have regard to the relevant provisions of the NCA Act. There is a description in subs 11(1) of the "general functions" of the Authority and in subs (2) its "special functions" are defined. The general functions, without descending to detail, include such matters as collecting and analysing "criminal information and intelligence" , investigating "relevant criminal activities" and arranging for the establishment of Commonwealth and State Task Forces. The term "relevant criminal activities" is defined in s 4 of the NCA Act to mean activities that imply that a "relevant offence" is being or may have been committed. The term "relevant offence" is also defined in s 4. The definition is quite extensive but it need not be set out for the purpose of these reasons. It is sufficient to make the observation that it includes an offence of criminal conspiracy, that is, an offence "that involves 2 or more offenders and substantial planning and organisation" . As has already been noted, both the Commonwealth and State notices specifically referred the question of the existence of such an offence to the Authority.

Where a reference to the Authority from the Commonwealth or a State is in force in respect of a matter relating to a "relevant criminal activity" , the "special functions" of the Authority, as contained in pars 11(2)(a) and (b) of the NCA Act, are "to investigate the matter in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against" either a law of the Commonwealth or a Territory on the one hand or a law of a State on the other. Thus the proceedings before Mr Melick amounted to an exercise by the Authority of a "special function" . It was investigating, inter alia, on both the Commonwealth and State references, whether an offence had been committed that "involves 2 or more offenders and substantial planning and organization" . An investigation that the Authority is conducting in the performance of its "special functions" is defined in s 4 of the NCA Act to be a "special investigation" .

When the Authority is engaged in a special investigation - but not otherwise - it has the power, by virtue of the provisions of s 28 of the NCA Act, to summon a person to appear before the Authority at a hearing to give evidence and to produce such material as is referred to in the summons. Copies of the relevant references must be attached to the summons and, unless there are special circumstances warranting non-disclosure, the summons must set out "the general nature of the matters in relation to which the Authority intends to question the person ..." (Subs 28(3)).

Section 12 of the NCA Act deals with the performance by the Authority of both its "general functions" and its "special functions" . Subsections 12(1) and (1A) require the Authority to assemble admissible evidence and to give it to one or other of the law enforcement agencies that are nominated in the subsections whilst subs 12(2) requires the Authority to cooperate and consult with the Australian Bureau of Criminal Intelligence. Subsection 12(3) empowers the Authority to recommend reforms of the law of administrative practices or administration in the courts. Subsections 12(4) and (5) were the subject of some debate during the course of counsels' submissions. They provide as follows:

"

(4)

In relation to the performance by the Authority of the functions referred to in paragraph 11(1)(b) and subsection 11(2), nothing in this Act (other than section 28):

(a)

shall be taken to confer on a member, or on a member of the staff of the Authority (other than a member of the Australian Federal Police or a member of the Police Force of a State), a power to interview a person in relation to an offence that the person is suspected of having committed, except in a case where the person has been served, as prescribed, with a summons to appear as a witness at a hearing before the Authority and has not yet so appeared; or

(b)

shall be taken to confer on a member of the staff of the Authority who is a member of the Australian Federal Police or of the Police Force of a State a power to interview a person that the member of the staff of the Authority does not have in his capacity as a member of the Australian Federal Police or of the Police Force of that State, as the case may be.

(5)

Nothing in paragraph (4)(a) shall be taken to affect a power of a member, or of a member of the staff of the Authority, to interview a person otherwise than in relation to an offence that the person is suspected of having committed."

It will be necessary to return to the provisions of those two subsections, and subs (4) in particular, in due course.

Sections 22, 24, 25 and 29 of the NCA Act, like s 28, are limited in their operation to special investigations. There is power to obtain documents, (s 29), power to apply for and obtain a search warrant (s 22), power to obtain an order for the delivery up of a passport (s 24) and power to hold hearings (s 25).

However, none of those sections contain restrictive provisions of the type that are contained in subs 12(4). In particular, those sections do not make any reference to a person who is suspected of having committed an offence. Finally, mention must be made of s 30 which contains provisions entitling a witness to refuse to answer a question or produce a document at a hearing on the grounds that include the ground that the answer or production "might tend to incriminate him" .

The structure of s 30 is as follows:- first it states that a person who has been served with a summons shall not, "without reasonable excuse" fail to attend the hearing. Then it is provided that a person shall not "without reasonable excuse" refuse to answer a question. Subsection 30(4) identifies self-incrimination as an example of a "reasonable excuse" but subss (5) and (7) state that it is not a "reasonable excuse" to refuse to answer a question if, in the circumstances that are there detailed, the Commonwealth or State Director of Public Prosecutions (as the case may be) gives a written undertaking that any answer given or any document produced will not be used in evidence against the person. However, those last mentioned provisions do not apply, and the general protection against self-incrimination remains where, as is provided for in subs 30(10):

the offence in respect of which the answer to a question or the production of a document or a thing, as the case requires, might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a Court or otherwise disposed of.

CAN A HEARING PROCEED ONCE THE AUTHORITY SUSPECTS A WITNESS OF HAVING COMMITTED A RELEVANT OFFENCE?

Mr Abbott QC, counsel for the applicants, submitted that the purpose of the power to summons persons to appear before the Authority is to enable the Authority to conduct its special functions as set out in subs 11(2) of the NCA Act; he went on to submit that those functions are not, and never were, intended to be utilised in relation to persons who are suspected of having committed a crime. He submitted that the intention of the Legislature, in passing the NCA Act in the form in which it did, was to allow the Authority to conduct hearings by summoning persons to give evidence in relation to the criminal activities of others - it did not extend, so it was claimed, to summoning those persons whom the Authority suspected of having committed the relevant offence. Mr Abbott claimed that support for this proposition was to be found in subs 12(4) which contains restrictions on the power to interview people who are suspected of having committed an offence; those same restrictions should be imported into s 28, so it was claimed.

In my opinion, there are three reasons for rejecting this submission. First, the language of s 28 does not readily lend itself to such an interpretation. It is expressed in general terms: it does not contain words of restriction. Subsection 28(1) simply states that:

A member [of the Authority] may summon a person to appear before the Authority at a hearing to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

The balance of the section deals with the material that must be served with the summons, the information that must be set out in the summons and the power of the member to require the production of documents and to take evidence on oath or affirmation. There are no restraints or words of limitation on the identity of the person who may be summoned to appear.

Secondly, the provisions of s 30 of the NCA Act contradict counsel's submission. That section states that a witness at a hearing before the Authority shall not, "without reasonable excuse" , fail (inter alia) to "answer a question that he is required to answer by the member presiding at the hearing" . Subsection 30(4) then states that, subject to some exceptions that are not material to these proceedings, it is a reasonable excuse for a natural person to refuse to answer a question on the grounds of self-incrimination. Thus the right to refuse to answer is available to all witnesses whether they are, or are not, suspects; but it must be emphasised that the right of refusal does not extend to answers to other questions when those answers will not tend to incriminate the witness. A combined effect of ss 28 and 30 protects any person against self-incrimination. But the sections have nothing to do with the suspicions of the Authority. Those suspicions are merely a small adjunct to its greater task of carrying out its special investigation. Its suspicions will amount to nothing if evidence is not forthcoming to substantiate them. Furthermore, the provisions of subs 30(10), which emphasises that the right to refuse to answer a question on the grounds of self-incrimination continues without restriction in respect of a person who has been charged with a relevant offence are highly relevant. An undertaking from a Director of Public Prosecutions that an answer will not be used in evidence will not alter that situation. The contents of subs 30(10) indicate that there is no prohibition against examining a person who has been charged with an offence - but they do afford him or her the protection against self-incrimination. If this is correct, then it stands to reason that a person who is merely suspected of having committed a relevant offence would not have a greater measure of protection. If a person who has been charged with an offence can be questioned, so also can a person who is merely suspected of having committed such an offence.

Thirdly, there is the issue of subs 12(4). Far from assisting the applicants, I find that it offers support for the contrary proposition. Putting to one side what might be meant by "a power to interview" , subs (4) provides that nothing in the NCA Act - other than s 28 - confers a power to interview a suspected person. Even then, there is another qualification; the suspect can be interviewed after he or she has been served with a summons but before the hearing. It is true that the subsection contains no coercive power: the right to interview does not carry with it an obligation to answer, but the subsection does clearly identify that no particular protection of the type suggested by Mr Abbott is afforded to a person who is suspected of committing a relevant offence. On the contrary there is a power in subs 12(4) to interview a person in relation to an offence that he or she is suspected of having committed after the person has been served with a summons to appear as a witness at a hearing under s 28.

In my opinion, the contents of the NCA Act make it quite clear therefore that the power to conduct a hearing pursuant to s 28 will continue to exist, notwithstanding that the witness who has been summoned is suspected of having committed a relevant offence; indeed, in the limited circumstances to which reference has already been made, a hearing may continue in respect of a witness who has been charged with an offence.

EXTENSION OF REASONABLE EXCUSE

Counsel for the applicants next submitted that, over and above the issue of self-incrimination, (which is addressed later in these reasons) his clients had an additional "reasonable excuse" for refusing to answer questions. It is true that they relied on the issue of self-incrimination but they went further. They said that the words "without reasonable excuse" are words of wide import and that the category - "that the answer to the question ... might tend to incriminate him" - is but one category coming under a general heading of "reasonable excuse" . In the circumstances of this case, the additional claim that was advanced on behalf of the applicants (that they had a reasonable excuse to refuse to answer questions) was that they were suspected by the NCA of having committed one or other of the relevant offences that were mentioned in the references to the Authority. Expressed in another way, it was submitted that, in an appropriate case, it may be a reasonable excuse to refuse to answer a question because no-one who is a suspect should be required to answer questions at a hearing under s 28 of the NCA Act. Support for the proposition that the term "reasonable excuse" are words of wide import may be found in Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423. In that case the Court was required to consider the language of s 18 of the New South Wales Crime Commission Act 1985. The section relevantly provides:

"

(2)

A person appearing as a witness at a hearing before the Commission shall not, without reasonable excuse:

...

(b)

refuse or fail to answer a question that the person is required to answer by the member presiding at the hearing;

...

(4)

Subject to subsections (5), (7), (9) and (11), it is a reasonable excuse for the purposes of subsection (2) for a natural person:

(a)

to refuse or fail to answer a question put to the person at a hearing before the Commission; ...

that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate the person."

These provisions are almost the same as the provisions of the NCA Act that are presently under consideration

It was held in Ganin's case that:

"The generality of the phrase "without reasonable excuse" in s 18(2) is not limited by s 18(4) or any other provision of the section. "Reasonable excuse" is not confined to the risk of self-incrimination in criminal or in civil proceedings."

In my opinion, the applicants cannot draw any comfort from the decision in Ganin's case . Whilst I am prepared to accept that the phrase "without reasonable excuse" is not limited to the principle of self-incrimination I cannot see how it can be extended in the manner suggested by Mr Abbott. I have already rejected the first argument that was advanced on behalf of the applicants and, as I see it, this second argument is merely a re-presentation of the first argument that has already been rejected. If I am correct in holding that s 28 of the NCA Act preserves the power to examine a witness who is suspected of committing a relevant offence, then the preservation of that power - subject always to the issue of self-incrimination - would be stultified if the fact of suspicion amounted to a reasonable excuse to refuse to answer any question. For these reasons the applicants' further submission must be rejected.

THE PRIVILEGE OF REFUSING TO ANSWER QUESTIONS

The principle of protection against self-incrimination is one that is " rooted deep in the resistance of our system of law to obliging a person to convict himself or herself by that person's own testimony..." : Kirby P in Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 at 421.

The protection that the NCA Act gives to a witness in a hearing is to be found in subsection 30(4) of the Act. It provides as follows:

"(4) Subject to subsections (5), (7) and (9), it is a reasonable excuse for the purposes of subsection (2) for a natural person:

(a)

to refuse or fail to answer a question put to him at a hearing before the Authority; or

(b)

to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Authority;

that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate him."

The use of the word "might" points to a lower threshold in my opinion; it indicates that the test to be applied in determining whether the question has the challenged effect is a lower test as compared with that which would be applied if the subsection read "that the answer to the question may tend to incriminate him" or "that the answer to the question will (or would) tend to incriminate him" . Mr Abbott submitted that the common law test has more of the "will or would tend to incriminate" component and that, for this reason, many of the leading authorities on the issue of self-incrimination must be read down. As is apparent from the brief summary of some of the relevant cases that follows, that submission cannot be accepted.

One of the earlier cases dealing with the common law right of silence is The Queen v Boyes (1861) 30 L.J.Rep.N.S. (QB) 301. In that case a witness had refused to answer questions upon the ground that any answer may tend to incriminate him. The Crown thereupon handed the witness a formal pardon. The witness still refused to answer, once again claiming the right to silence. In holding that the witness was bound to answer, Cockburn J, who delivered the judgment of the Court, said at 303-304:

"...[T]o entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. We, indeed, quite agree that if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question, there being no doubt, as observed by Alderson, B., in Osborn v. the London Dock Company , that a question, which might appear at first sight a very innocent one, might, by affording a link in a chain of evidence, become the means of bringing home an offence to the party answering."

A more recent example of the use of the privilege may be found in Brebner v Perry [1961] SASR 177. In that case, a witness invoked the privilege against self-incrimination in criminal proceedings against Perry. The witness had already made admissions to the police implicating himself and Perry in the commission of the offence charged.

Mayo J said:

"Where a witness who is on oath objects that the answer to a question put to him may incriminate him, and there is good reason to accept the objection as well founded he will be excused. "The danger ... must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things - not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barley possible contingency, so improbable that no reasonable man would suppose it to influence his conduct": R. v. Boyes (1861) 1 B. & S, 311 at 330: Ex parte Reynolds; Re Reynolds (1882) 20 Ch.D. 294."

His Honour went on to add that the claim by a witness, even though made on oath, and even if there is no doubt as to his credibility, is not sufficient. See also Phipson on Evidence 14 th Ed par 20.47. "It must be shown to the Court, from the circumstances, and the nature of the testimony that is sought to be adduced, that there is reasonable ground he may be implicated in some offence by his answer" .

I consider that these remarks remain apposite save only for the measure of satisfaction with respect to the existence of the "reasonable ground" that is required by the use of the word "might" in place of the word "may" .

Mr Gray QC, counsel for the Authority, submitted that there was no warrant for suggesting that the statutory test under the NCA Act differs from the common law test. As an example, he pointed to the decision in Sorby v Commonwealth (1983) 152 CLR 281. That was a case that dealt with the provisions of the Royal Commission Act 1902 (Cth). The language of the statute required a person to answer questions even though the answer "might" tend to incriminate him or her. Mr Gray argued that in the course of their judgments, no member of the High Court suggested that the language of the statute affected the common law test. That may be so, but in the circumstances of the case it was not to be expected that the High Court would discuss the nature of such a test for in Sorby's Case the intended witnesses had attempted, unsuccessfully, to argue that the legislation had not taken away the privilege of self-incrimination. It was not therefore necessary for the Court to examine the standards that were to be applied when considering the issue of self incrimination.

The particular provisions of the NCA Act dealing with the issue of self-incrimination were considered by Northrop J in C v National Crime Authority (1988) 78 CLR 338. In my opinion, his Honour's decision in that case has a particular application to the facts of this case. I regard it as appropriate, both in the interests of comity and because I agree with it, to follow and apply his Honour's general observations. In that case the principal issue was whether a witness might take a blanket objection to answering all questions; his Honour found that such a course of action was not available. The examination that was made of the relevant authorities is most useful in answering the issues that have been addressed in the present litigation. His Honour, after first observing that the provisions of par 30(2)(b) and (4)(a) made it clear that Parliament did not intend the privilege against self-incrimination to be taken away, went on to consider the application of the principle. He noted that it had been discussed in:

" Jackson v Gamble [1983] 1 VR 552 at 555-6 by Young CJ in a passage which was approved expressly by the Full Court; see Gamble v Jackson [1983] 2 VR 334 at 335-6. The relevant parts of that passage are set out:

The practice followed when a person objects to answering a question upon the ground that the answer may tend to incriminate him was laid down in R v Boyes (1861) 1 B & S 311; 121 ER 730 and in Reynolds (1882) 20 Ch D 294: see also Brebner v Perry [1961] SASR 177 at 180-1. 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 stated 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 risk to a witness as a link in a chain of proof, he must satisfy the court by facts that will, in that event, be outside the terms of the question, that the answer would, or might tend to, incriminate him: eg R v Cox and Railton (1884) 14 QBD 153 at 175': Brebner v Perry, supra, at 183 ...

It would seem, from the passage quoted, that Young CJ was prepared to use the words "may" and "might" interchangeably.

Northrop J went on to quote from the judgment of the Full Court, noting that:

"Starke J, in a judgment agreed to by Crockett and Marks JJ, after quoting a long passage from the judgment of Young CJ which included the two passages set out above, said at 336: "His Honour's statement of the legal principles applicable appears to me with respect to be impeccable. Questions of an incriminating nature may be of two kinds. The first is where the question itself reveals that the material sought 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 of 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 be able 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."

Northrop J then concluded that he should apply those principles in the case then under consideration. In the course of doing that, it is to be noted that his Honour was not called upon to express a view about the use or presence of the words "might" and "may" .

According to The New Shorter Oxford English Dictionary, one of the accepted meanings of the word "will" is to "be able to, be capable of (doing); have a (specified) ability, potential, or capacity" . That context is, in my opinion, one that is suitable for giving appropriate meaning to the use of the word in the expression "will tend to incriminate" . I do not think that the word "would" , being the past tense of "will" , calls for any different interpretation. Indeed, according to The Macquarie Dictionary "would" is often used in place of "will" .

Both "may" and "might" are commonly used when referring to a possibility, or an opportunity and in that sense, they do not impose the same degree of capability as "will" and "would" . Something that "may or might" happen is less likely to occur than something that "will or would" happen. But within the field of possibilities "may" could suggest a possibility that is more likely to occur than one which "might" only occur. Applying these dictionary definitions to the various expressions, it appears that there is an ascending order. An answer that "might" tend to incriminate is at the lowest level - meaning that the risk of incrimination need only be a low level possibility to entitle a witness to refuse to answer the question. If however, the test is premised on the statement that the question "may" tend to incriminate, the risk attendant on the witness having to answer the question could be marginally greater. But if the witness must answer a question unless the answer "will" or "would" tend to incriminate, one is elevated from possibilities - perhaps into the world of probabilities; there would be a far greater compulsion on the witness to answer in those cases where he or she could only be excused where an answer "will" or "would" tend to incriminate.

The practical differences that flow from the use of "may" as distinct from "might" are, in my opinion, slight. Indeed, there is a case for suggesting that some use the two words interchangeably. An example of that proposition appears in Pyneboard Pty Ltd v Trade Practices Commission (1982-1983) 152 CLR 328. The relevant legislation that was then under consideration contained that phrase "may tend to incriminate" yet the editor of the headnote to the case incorrectly stated that the statute did not excuse a person from furnishing information "on the ground that the information or document might tend to incriminate the person ..." . Likewise, in their joint judgment at p 337, Mason ACJ Wilson and Dawson JJ, in the course of making a general observation about the construction of the relevant section used the phrase "might tend to expose the party ..." .

The same interchangeable use of "may" and "might" is to be found in the speeches in the House of Lords in Rank Film Distributors Ltd v Video Information Centre (1982) AC 380. That was a case where the defendants, in breach of copyright, made and sold video cassette copies of the plaintiff's films. The plaintiff obtained ex parte Anton Piller orders, including orders that the defendants give immediate discovery and give immediate answers to interrogatories relating to the supply and sale of infringing copies. In seeking to have the orders set aside, the defendants raised the argument that discovery and answers to interrogatories made them susceptible to criminal prosecution. The House of Lords was therefore called upon to consider whether, in the circumstances of those civil proceedings, the common law right of protection from self-incrimination, was available to the defendants.

Their Lordships were unanimous in holding that the privilege against self-incrimination existed. Lord Wilberforce, with whose speech Lord Diplock agreed, said at p 441 that the essential question that had to be determined was whether the provision of information or the production of documents "may tend to incriminate" the defendants. On the other hand, Lord Fraser of Tulleybelton used "might" - not "may" - when he said at 445:

"Now for the first time the defendants have objected to making discovery and to answering the interrogatories on the ground that by doing so they might incriminate themselves."

The remaining members of the House, Lord Russell of Killowen and Lord Roskill, agreed with both Lord Wilberforce and Lord Fraser of Tulleybelton, indicating thereby, that they attached little or no significance to the words "may" and "might" .

It seems to me, therefore, that the statutory use of the phrase "might tend to incriminate" does not do any violence to the common law test. The most that could be said is that it marginally assists the witness who might be concerned about the risk of self incrimination. But a court must still see for itself that there is a reasonable ground to fear that the answer might - not may - have the stated effect.

MEMBERSHIP OF THE GANG

Mr Abbott, when pressed to explain how a question about membership of a gang might raise the subject of self-incrimination answered by saying that such a question in isolation would not be a cause of concern; but, so he claimed, in the particular circumstances of this case, where the activities of that particular gang were to be the specific subject of the Authority's investigations, the answer to such a question, when linked with other evidence that may or may not be forthcoming, casts a different outlook on the apparent innocence of the question. Mr Abbott submitted that his clients did not have to point to any possible offence: it was sufficient that the particular gang had been named in the reference to the Authority. Ultimately, Mr Abbott conceded that his argument carried him to the proposition that each of his clients was entitled to refuse to answer any question touching upon or concerning him and the membership, activities or hierarchy of the gang. I cannot accept such a broad proposition. It may be that an affirmative answer admitting to membership of the gang may be an apparently innocent answer that becomes an important link in a chain of guilt. It is not possible to express a view with confidence because none of the applicants have endeavoured to explain what that link or that chain might be. They have the responsibility of meeting that onus. In these circumstances I can only conclude that the information that the applicants placed before Mr Melick was insufficient to excuse them from answering the question:

"Are you a member of a motor cycle gang known as the ... gang?"

The application for judicial review is dismissed with costs.