COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CWDS
  Evidence - privilege against self-incrimination - indemnity against
prosectuion under any law of Commonwealth given to witness - undertaking given
by State Attorney-General to witness not to use evidence against her - ss.13
and 14 Criminal Procedure Act (1986) (N.S.W.) - whether witness at risk of
prosecution by State of New South Wales.

HRNG
SYDNEY
#DATE 30:7:1992
  Counsel and Solicitors for the applicant:   Mr A. Sullivan QC and
                                              Mr F. Carnovale instructed by
                                              Walker and Raphael
  Counsel and Solicitors for the respondent:  Mr G. Downes QC and
                                              Mr S. Gibb instructed by
                                              Australian Government Solicitor
  Counsel and Solicitor for the Witness X:    Mr P. Pearsall instructed by
                                              Ms B. Duchen
  Appearing as Amicus Curiae:                 Mr Keith Mason QC,
                                              Solicitor-General of New
                                              South Wales

ORDER
  THE COURT ORDERS:
      That X's claim of privilege in respect of the tender of her
      statement is rejected.
Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.

JUDGE1
  In these taxation appeals, a witness, (hereafter referred to as "X") has
claimed the benefit of the privilege against self-incrimination in the
following circumstances.
2.  In 1974, and subsequently, the witness wrote up some books of account of
businesses in which the Commissioner contends (but the taxpayer denies) the
taxpayer had an interest.  In September 1987, after the institution of these
appeals, the taxpayer was tried in the District Court, and convicted, on a
charge of conspiracy to defraud the Commonwealth.  At the trial, X was called
as a witness for the prosecution.  At the time she was called, the Crown
Prosecutor informed the Court that X "had been granted an indemnity" by the
Commonwealth Director of Public Prosecutions.  This was a reference to an
instrument under the hands of Mr Temby, the Director of Public Prosecutions
dated 25 September 1986 in the following terms:
      "I, IAN DOUGLAS TEMBY, Director of Public Prosecutions,
      pursuant to sub-section 9(6) of the Director of Public
      Prosecutions Act 1983, hereby undertake that any answer
      given, or statement or disclosure made, by (X), or the fact
      that (X) discloses or produces a document or other thing, in
      proceedings against ABRAHAM GILBERT SAFFRON for offences
      against section 86(1)(e) of the Crimes Act 1914 and section
      229 of the Income tax Assessment Act 1936 will not be used
      in evidence against (X)."
3.  Prior to this, X had been given by Mr Robert Ryan, an investigator with
the National Crimes Authority, a document dated 26 July 1985 as follows:
      "I, ROBERT F. RYAN, an Investigator with the National Crimes
      Authority, Melbourne, intend to ask questions of (X)
      concerning her employment as a Book keeper for Apsley
      Investments P/L, I give the "undertaking" that what ever
      (X) states during this interview concerning her employment
      will not be used in evidence against her."
4.  On 15 May 1992, Mr Rozenes QC, now the Commonwealth Director of Public
Prosecutions, executed an instrument under s.9(6D) of the Director of Public
Prosecutions Act 1983 in which Mr Rozenes, as the Commonwealth Director of
Public Prosecutions, undertook to X as follows:
      "Pursuant to section 9(6D) of the Director of Public Prosecutions
      Act 1983, I, MICHAEL ROZENES QC, the Director of Public
      Prosecutions, hereby undertake that you will not be prosecuted,
      either summarily or on indictment, under any law of the
      Commonwealth, in respect of any act or omission that arose from or
      is related to your involvement in the taxation, financial or
      business affairs of ABRAHAM GILBERT SAFFRON or of any related
      person, company or business entity."
5.  On 27 July 1992 the Commonwealth Deputy Director of Public Prosecutions
wrote a letter to X in the following terms:
      "It is the intention of the Director that the Undertaking
      given to you pursuant to section 9(6D) of the Director of
      Public Prosecutions Act 1983 dated 15 May 1992 is that you
      be indemnified from prosecution under any law of the
      Commonwealth in respect of any act or omission that arose
      from or was related to your involvement in the taxation,
      financial or business affairs of Abraham Gilbert Saffron or
      of any related person, company or business entity including
      James McCartney Anderson ('Anderson') and any company or
      business entity associated with Anderson;  Apsley
      Investments Pty Ltd ('Apsley') and any person, company or
      business entity associated with Apsley and the businesses
      'Carousel Cabaret', 'Venus Room', 'Gilligans', 'Showbiz',
      'La Bastille' and 'Laramie' and any person, company or
      business entity related to these businesses."
6.  It is accepted, on behalf of X, that she is now protected from prosecution
by the Commonwealth.
7.  However, it is her submission that she is still at risk of prosecution by
the Crown in right of the State of New South Wales by reason of the matters
dealt with in her statement dated 1 June 1992, which is now sought to be
tendered on behalf of the Commissioner.  It appears that this document was
signed at the request of the Commissioner and is in the same terms, in all
essential respects, as the evidence given by X at the criminal trial in 1987.
Through her counsel, X has objected to the tender of the statement.  It is
submitted, on her behalf, that the privilege against self-incrimination
protects her in this respect and further protects her from any direction by
the Court that she give oral evidence, in chief or in cross-examination, on
the matters dealt with in her statement.
8.  On the other hand, on behalf of the Commissioner, it is contended that the
privilege is not available in the circumstances of the present case.
9.  Since X was called to give evidence, an undertaking has been signed by the
State Attorney-General.  That undertaking, which is dated 25 July 1992, is as
follows:
      "WHEREAS proceedings are before the Federal Court of
      Australia and the Administrative Appeals Tribunal in respect
      of a review of the Commissioner of Taxation's assessment of
      the Income Tax payable by Abraham Gilbert Saffron and
      payable by Apsley Investments Pty. Ltd.
      AND WHEREAS (X) is required as a witness in the aforesaid
      proceedings to adduce all the facts to her knowledge at the
      hearing of the aforesaid proceedings;
      AND WHEREAS in order to adduce such facts (X) may render
      herself liable to prosecution for an offence under the laws
      of New South Wales;
      AND WHEREAS I, John Planta HANNAFORD, Her Majesty's Attorney
      General for the State of New South Wales, am satisfied that
      for the effective hearing of the aforesaid proceedings and
      for the due administration of justice, it is necessary to
      have resort to the evidence of (X) and for that purpose (X)
      should be indemnified as hereinafter appears;
      Now therefore I, the said John Planta HANNAFORD, DO HEREBY
      UNDERTAKE that any answer given, or statement or disclosure
      made, or the fact that (X) discloses or produces a document
      or other thing, in the proceedings abovementioned will not
      be used in evidence against (X);
      PROVIDED that (X) gives her active co-operation including
      the giving of evidence truthfully and frankly and without
      embellishment and withholding nothing of relevance in the
      proceedings aforementioned in which she is required to give
      evidence in relation thereto."
10.  The Solicitor-General for the State of New South Wales appeared in this
application and informed the Court that the undertaking, is regarded as,
binding on the Attorney-General in honour.
11.  In considering whether the privilege against self-incrimination is
available, the question, which is for the Court to determine, is whether the
apprehended danger of prosecution is "real and appreciable, and not of an
imaginary or insubstantial character" per Bowen C.J. in Eq. in In re
Intercontinental Development Corporation Pty Limited (1975) 1 ACLR 253 at 259.
See also In re Westinghouse Electric Corporation Uranium Contract (1978) AC
547 at 581.
12.  On behalf of X, it is claimed that the tender of the statement and the
giving of oral evidence in that connection may incriminate her directly or
"may lead to incrimination or the discovery of real evidence of an
incriminating character" (see Sorby v The Commonwealth (1983) 152 CLR 281 at
310).
13.  I am prepared to assume in favour of X, without deciding, that apart from
the effect, if any, of the undertaking given by the State Attorney-General,
the privilege would have been available by reason of evidence being sought to
be led with respect to the procedures followed by X in the keeping of the
books.
14.  However, in my opinion, by reason of the giving of that undertaking, X no
longer needs the protection of the privilege and for that reason alone, in my
view, the privilege is no longer available.  To borrow the language of Julius
Stone in his work  "Evidence, Its History and Policies" (edited by Andrew
Wells) (at p 570) - "the privilege ceases if the danger ceases."  (See also
the observations of Gibbs C.J. in Sorby's case at page 290; and see BTR
Engineering (Australia) Limited v Patterson (1990) 20 NSWLR 724 per Giles J at
page 730).
15.  In R v Georgiadis (1984) VR 1030, Ormiston J said (at 1037):
      "As pointed out in a recent learned article...by A.T.H. Smith,
      Immunity From Prosecution, (1983) Cambridge Law Journal 298 at
      300, 'none of the standard texts and treatises on constitutional
      law or criminal law even mention it (the immunity from
      prosecution).'  And he stated his conclusion at 316:  'As a matter
      of law, none of the devices at present employed is legally wholly
      efficacious and only the Queen's pardon if it were ever to be
      resurrected would act to prevent the state from going back on its
      word.  However, the courts have an inherent power to stay
      oppressive or vexatious prosecutions....'
      What Mr Smith said in that article was written before the
      two decisions in R v Milnes and Green and R v. McDonald.
      Milnes' case confirmed his view as to informal
      pardons....Moreover, the Privy Council (in McDonald (1983)
      NZLR 252) has recently expressed an opinion in relation
      to a not dissimilar immunity from prosecution given by the
      New Zealand Solicitor-General.  In so doing, Lord Diplock
      for the Board quoted with approval from the judgment from
      the New Zealand Court of Appeal consisting of Sir Clifford
      Richmond, President, Mr Justice Woodhouse and Mr Justice
      Quilliam, as follows, (1983) NZLR at 255:
            'It is in our view immaterial whether such an
            undertaking is one which is as a matter of law
            strictly binding on the Crown.  We say that
            because it is quite unthinkable that such an
            undertaking would not be honoured and in reality
            the importance of such undertaking in relation
            to the evidence given by an accomplice lies in
            the practical effect which it will have both in
            protecting that accomplice and in bringing about
            a state of mind on his part wherein so far as
            possible he is removed from the fear of
            consequences of giving evidence incriminating
            himself and knows that he has nothing to gain by
            giving false evidence.'"   (Emphasis added)
16.  I agree, with respect, with Ormiston J.
17.  In my opinion, in the hypothetical circumstance that the Crown in the
right of the State of New South Wales were now to prosecute X for an offence
in relation to the keeping of the books mentioned in her statement, a
permanent stay of the prosecution would be granted on the basis of a lack of
fairness in the sense described by Mason C.J. and Dawson, Toohey and McHugh
JJ. in Williams v Spautz, High Court of Australia, 27 July 1992 at pp 6-7.
18.  It follows, in my view, that there is not any real or appreciable danger
of a State prosecution by reason of the tender of the statement.
19.  Further, there is no reason to suppose, at this stage at least, that her
oral evidence would travel beyond the matters dealt with in the statement.  If
it becomes necessary to do so, this aspect can be reviewed during the course
of the giving of her evidence.
20.  I would add that, as matters now stand, there is no real or appreciable
danger, in my view, of any indirect or derivative use of the evidence in X's
statement in the sense explained by Gibbs C.J. in Sorby's case at 293-4.
21.  It is true that the undertaking given by the State Attorney-General is
expressed to be conditional in certain respects but nothing appears to turn on
this for present purposes.
22.  Reference was made in the course of argument to the provisions of ss. 13
and 14 of The Criminal Procedure Act (1986) N.S.W. Part IV of that Act, deals
with "Indemnities and Undertakings".
23.  Section 13 provides for an indemnity as follows:
  "13(1)  The Attorney-General may, if of the opinion that
          it is appropriate to do so, grant a person an indemnity from
          prosecution (whether on indictment or summarily) -
          (a)   for a specified offence;  or
          (b)   in respect of specified acts or omissions.
     (2)  If the Attorney-General grants such an indemnity, no
          proceedings may thereafter be instituted or continued
          against the person in respect of the offence or the acts or
          omissions.
     (3)  Such an indemnity may be granted conditionally or
          unconditionally.
     (4)  Such an indemnity may not be granted in respect of a
          summary offence that is not a prescribed summary offence,
          unless the Attorney-General has consulted the Minister
          administering the enactment or instrument under which the
          offence is created."
24.  Undertakings are dealt with by s.14 as follows:
 "14.(1)  The Attorney-General May, if of the opinion that
          it is appropriate to do so, give to a person an undertaking
          that -
          (a)   an answer that is given, or a statement or disclosure
                that is made, by the person in the course of giving
                evidence in specified proceedings;  or
          (b)   the fact that the person discloses or produces a
                document or other thing in specified proceedings,
          being proceedings for an offence against a law of the State
          (whether an indictable offence or a summary offence), will
          not be used in evidence against the person.
     (2)  If the Attorney-General gives such an undertaking -
          (a)   an answer that is given, or a statement or disclosure
                that is made, by the person in the course of giving
                evidence in the specified proceedings;  or
          (b)   the fact that the person discloses or produces a
                document or other thing in the specified proceedings,
          is not admissible in evidence against the person in any
          civil or criminal proceedings, other than proceedings in
          respect of the falsity of evidence given by the person.
     (3)  Such an undertaking may be given conditionally or
          unconditionally.
     (4)  Such an undertaking may not be given in respect of a
          summary offence that is not a prescribed summary offence,
          unless the Attorney-General has consulted the Minister
          administering the enactment or instrument under which the
          offence is created."
25.  In introducing the legislation the Attorney-General said, (New South
Wales Parliamentary debates, Legislative Assembly, 1 December 1986, at 7343):
      "One power the Attorney-General presently exercises and
      which is not given to the director (of Public
      Prosecutions) is the power to indemnify a person against
      prosecution for a specified offence, or in relation to
      specified acts, or omissions, committed by the person.  At
      present, the Attorney-General can give an undertaking not to
      prosecute a person where, for example, that person is
      willing to give evidence against some other person.  By
      clauses 13 and 14 of the Criminal Procedure Bill, the power
      to grant an indemnity is now codified, and is extended to
      prohibit all prosecutions by any person.  At present
      indemnities are rarely given.  That is a power that should
      be exercised with extreme caution, and only when it is in
      the public interest to do so.  The interest of the
      prosecution in securing a conviction is only one of the
      matters that should be considered and, therefore, the power
      is to reside in the Attorney-General.  The director can,
      however, request that the Attorney-General exercise this
      power."  (Emphasis added)
26.  Without deciding the point, it may be accepted, as is submitted on behalf
of X, that ss. 13 and 14 do constitute a code of the field they seek to cover
(cf. Winterton, "Parliament, the Executive and the Governor-General" at pp
113-115).  But, in my view, this does not assist X here.  As I have said, the
subject undertaking is binding in honour only and I have proceeded on that
footing alone to conclude that the privilege is not needed to protect X.  That
is, even if the prerogative has merged, so far as it goes, in ss.13 and 14 of
the Criminal Procedure Act, it does not follow that, in an area not covered by
those provisions (and that particular point is common ground) it is not open
to the Attorney to bind himself in honour not to use the evidence in question.
27.  Other arguments, including waiver, were relied on by the Commissioner,
but it is not necessary to deal with them.
28.  Accordingly, I reject X's claim of privilege in respect of the tender of
the statement.