Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
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The most signifi cant matter applying in examination hearings is the abro-
gation of the privilege against self - incrimination. There are, however, limita-
tions on how evidence obtained at examination can be used in later court
proceedings.
Legal professional privilege does, however, apply. Therefore, unless a witness
can rely on legal professional privilege, he or she must answer a question or
produce a document or other thing when called upon to do so. (There is no
right to silence.)
If a witness refuses or fails to take the oath or to make an affi rmation or
refuses to answer questions, he or she may be charged with contempt, they
may be arrested and referred to the Supreme Court, and in addition the witness
may be charged with a criminal offence which under the Act carries a penalty
of up to fi ve years ’ imprisonment upon conviction. Further, if the witness gives
false or misleading evidence, the witness may be charged with an offence under
the Act which carries the same penalty.
The witness at an examination hearing is entitled to be legally represented.
However, because of the inquisitorial nature of the proceedings, the role of
the legal practitioner is limited. I shall deal with this issue in more detail
shortly.
Another important matter is that the Chief Examiner must ensure at
the beginning of the examination that the proceedings are being
video - recorded.
Obviously, there are many more details as to the legislation, the examination
process and the function of the Chief Examiner which I could go into.
However, I think that what I have already described gives the necessary back-
ground for there to be understanding of the context in which the examination
process takes place.
The r ight to l egal r epresentation and the r ole of
the l egal p ractitioner in the e xamination h earing
The Act provides that a witness giving evidence at an examination ‘ may be
represented by a legal practitioner ’ (section 34(1)). In my view this subsection
is in its terms permissive and facultative so that the Chief Examiner would, in
the normal course of events, be required to allow a witness to be legally rep-
resented if the witness wished it (see Ward v Williams [1955] at 505).
Further, it has been recognized that it is in the public interest that persons
be legally represented because it assists and enhances the administration of
justice ( Grant v Downs [1976] at 685 per Stephen, Mason and Murphy JJ).
There are a number of other provisions in the Act relevant to the issue of
legal representation.
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Further p rovisions r elevant to l egal r epresentation
Section 30 concerns the conduct of the examination and subsection (1) pro-
vides that: ‘ The Chief Examiner is not bound by the rules of evidence in
conducting an examination and may regulate the conduct of proceedings as
he or she thinks fi t. ’
Section 36(1) entitles a legal practitioner representing a witness to take part
in the examination hearing subject to the discretion of the Chief Examiner as
to what he or she thinks is appropriate or relevant to the investigation of the
organized crime offence.
The power given to the Chief Examiner in these sections plainly means that
an Examiner has a wide discretion as to how the examination hearing is to be
conducted; that discretion will include regulating the part a legal practitioner
should play in the examination hearing process.
There are a number of other sections which deal with other aspects of the
role of legal practitioners.
Section 33(1) grants protection to a legal practitioner appearing for a
witness in an examination hearing and impliedly reinforces the fact that a
witness may be legally represented.
Section 35(2) gives a legal practitioner representing a witness a right to be
present at an examination even though the Chief Examiner has not made a
specifi c direction allowing such attendance under section 35(1). This right is,
however, conditioned by the right of the Chief Examiner to regulate his or
her own proceedings (see Hogan v Australian Crime Commission (2005) FCA
913. (2005) 154 ACrim.R336).
It is in my view clear that the law is that a witness is entitled to be legally
represented at the coercive powers examination hearing.
The r ole of the l egal p ractitioner
I now turn to consider the role that a legal practitioner will play in an exami-
nation hearing conducted before the Chief Examiner.
In conducting an examination under the Act the Chief Examiner is obliged
to act according to the rules of natural justice; those rules must apply to a
consideration of what role a legal representative should play in the examination
hearing.
The relevant rules of natural justice may vary dependent in part on the
nature of the inquiry, the legislation under which the person acts and the
purpose of the examination hearing or process (see National Companies and
Securities Commission v News Corporation Ltd [1984] ).
Therefore, in considering how the rules of natural justice apply to the role
of the Chief Examiner and legal representation, it is appropriate to examine
the role of the Chief Examiner, the legislation and the purpose of the exami-
nation hearing process.
The examination of a witness under the Act takes place under the authority
given by the coercive powers order to investigate an organized crime offence.
Major Crime (Investigative Powers) Act 2004
115
A witness who is examined must answer questions under penalty of imprison-
ment and is expressly prohibited from relying on the privilege against
self - incrimination.
The examination powers that a Chief Examiner utilizes in the examination
hearing require that the hearing not be frustrated in its investigative purpose
and that the process proceeds with expedition. It is in the context of these
requirements that the application of the rules of natural justice must be bal-
anced. In the result, in my opinion, the role to be exercised by a legal practi-
tioner in the examination hearing will be restricted and the function he or she
will perform will be totally different from the role played by counsel, for
example, in a criminal trial.
In deciding what the actuality of the limited role is I have been greatly
assisted by reference to High Court authority and legislation, which prescribes
what the role of a legal representative will be in very similar coercive powers
examination hearings.
The Corporations Act 2001 Part 5.9 legislates in relation to the mandatory
examination of a person as to the affairs of a corporation.
Section 597(16) sets out the role of the legal practitioner in an examination
hearing under that Act. This provision is in the following terms:
A person ordered to attend before the Court or another court for examination
under this Division may, at his or her own expense, employ a solicitor, or a
solicitor and counsel, and the solicitor or counsel, as the case may be, may put
be, considers just for the purpose of enabling the person to explain or qualify
any answers or evidence given by the person.
It can be seen, therefore, that a legal practitioner appearing on a com-
pulsory examination in relation to a corporations matter is restricted to a
limited role, subject to the Court considering it to be just ‘ for the purpose
of enabling the person to explain or qualify any answers or evidence given by
the person ’ . The right afforded by this legislation is essentially allowing the
legal practitioner to re - examine the witness after the examination process is
completed.
The provisions of section 597(16) refl ect and adopt the view taken by the
High Court in relation to earlier similar legislation in the case of NCSC v News
Corporation . In that case the Commission sought to restrict the role that the
legal representatives of News Corporation would play in the Commission ’ s
investigation. The majority of the High Court upheld the right of the
Commission to restrict the role of the legal practitioners in the context of an
investigation where the Commission was not engaged in making fi ndings. The
High Court found that there was compliance with the rules of natural justice
in the context of the investigative procedure being undertaken.
In my opinion, the purpose for which a compulsory examination is con-
ducted under the Corporations Act and its legislative predecessors and proce-
dures are very similar to the purposes and procedures applicable to examinations
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Handbook of Psychology of Investigative Interviewing
under the 2004 Act. Both involve compulsory examinations by way of an
administrative inquiry which has been established by the executive arm of
government and which are not judicial in character. Both seek to obtain infor-
mation only and do not involve the making of fi ndings against those who are
the subject of the examination.
In these circumstances therefore, based on an application of the law, it
is appropriate that the Chief Examiner conduct examination hearings in
the same manner as compulsory examinations are conducted under the
Corporations Act. The conduct of an investigation/examination hearing in
such a manner is fair and complies with the rules of natural justice; nothing
more is required to satisfy the requirements. Therefore, the Chief Examiner
conducts examination hearings in the following manner in relation to legal
representation.
• In the normal course of events the Chief Examiner will allow a witness to
be legally represented.
• In some circumstances the exclusion of a particular legal practitioner
employed by the witness from the examination hearing may be required.
This requirement may arise in circumstances where the presence of a par-
ticular lawyer may prejudice the investigation. The Chief Examiner may
prevent a particular lawyer from appearing by exercising the general power
he or she has to regulate the conduct of the examination hearing (see
Hogan v Australian Crime Commission ).
• The legal practitioner acting for the witness would have only a limited part
to play in the examination process as I have explained, and normally would
not be able to raise objection.
• If the witness reasonably seeks legal advice during the examination hearing,
then the examination hearing will be interrupted so that the legal practi-
tioner can advise the witness.
• At the conclusion of the examination the legal practitioner acting for
the witness may question his or her client in relation to issues which seek
to explain away or qualify matters which have arisen during the examina-
tion of the witness. This procedure will be essentially a process of
re - examination.
• No submissions will be allowed to be made by the legal practitioner acting
for the witness at the conclusion of the examination.
Relevant m atters of l aw of w hich a l egal
p ractitioner should be a ware when r epresenting
a w itness on an e xamination h earing
Despite the limited role that a legal practitioner plays in the examination
process, there are many important matters that the legal practitioner should
Major Crime (Investigative Powers) Act 2004
117
be aware of which must be the subject of advice to the client particularly in
the period preceding the examination hearing. I propose to deal with some of
these matters.
The fi rst and most important matter is that if a witness is served with a
witness summons, then the witness must attend at the examination hearing.
Failure to do so will almost certainly involve the issuing of a warrant for the
witness ’ s arrest and charging of the witness with a criminal offence carrying a
term of imprisonment of up to fi ve years.
Where a client attends with the summons he or she will be likely to have
in their possession a further document called a confi dentiality notice. This is
a document which the Chief Examiner or the Supreme Court must issue in
certain circumstances; in other circumstances, there is discretion to be exer-
cised as to whether or not a notice should issue. The service of this notice
means that the person served must not, without reasonable excuse, tell anyone
of the existence of the summons, the subject of the organized crime offence
referred to in the summons (or order) or any offi cial matter connected with
the witness summons (or order) (see section 20 of the Act). The obtaining of
legal advice would constitute a reasonable excuse and the term ‘ offi cial matter ’
is defi ned in the Act.
The next important matter is that in the examination hearing the privilege
against self - incrimination is abrogated (see section 39 of the Act).
However, the use of admissions made is restricted so that any answer given
or document or other thing produced cannot be used in evidence against the
person in a criminal proceeding or a proceeding for the imposition of a penalty.
This means that the person must be in the position of an accused or a defen-
dant in order to attract the benefi t. It would not apply if the person were called
as a witness.
It is, however, important to note that the Act does not limit any derivative
use of information obtained during the examination hearing.
The legislation is obviously designed so that the witness is encouraged to
give truthful and accurate evidence at an examination hearing. If a witness
gives such evidence, it cannot be used against the person if he or she is charged
and the person would not be at risk of being charged with an offence against
the Act. In these circumstances it would seem to be good legal advice to tell
the client to answer questions accurately and truthfully in an examination
hearing.
Legal professional privilege does apply (see section 40 of the Act). However,
subject to the privilege, it is an offence not to answer questions, to produce
documents or other things when required to or to give false or misleading
evidence. A refusal or failure t
o answer a question or to produce a document
or other thing involves the commission of an indictable offence carrying a
penalty of up to fi ve years ’ imprisonment. It is also an indictable offence car-
rying the same term of imprisonment for a witness to give false and misleading
evidence or to produce a document or thing that the person knows to be false
and misleading in a material particular.
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If an issue as to legal professional privilege arises at an examination hearing,
the legal practitioner is likely to be called upon to make submissions on the
issue. Different procedures apply in relation to whether the privilege issue arises
fi rst in respect of a question and second in relation to a document or thing.
Contempt
The Act provides that in certain circumstances the Chief Examiner may charge
a person with contempt; if this occurs, then the witness is likely to be imme-
diately arrested, charged and taken before the Supreme Court. The Supreme
Court will then decide if an offence has been committed and what the appro-
priate penalty should be.
The contempt provisions are contained in section 49 the Act, and in subsec-
tion (1) the circumstances in which a contempt may take place are detailed.
These circumstances are as follows:
(a) fails without reasonable excuse to produce any document or other thing
the person is required by the witness summons to produce; or
(b) being called or examined as a witness at an examination, refuses to be
sworn or to make an affi rmation or without reasonable excuse refuses or
fails to answer any question relevant to the subject matter of the examina-
tion; or
(c) engages in any other conduct that would, if the Chief Examiner were the
Supreme Court, constitute a contempt of that Court.
The Supreme Court has jurisdiction to deal with the contempt charge under
Order 75, Part 3 as contempt of an inferior court.
It is clearly important for a legal practitioner representing a witness to be
familiar with the requirements of the legislation and to advise his or her client
of possible results where there has been a failure to comply and it is also
important to be aware of the contempt power which can be used under our