Crime And Misconduct Commission Enquiries

Perhaps the most troubling aspect of these coercive hearings is that the protection afforded every one of a privilege against answering questions that might incriminate them of some crime is taken away.

In other words, any question, no matter how damning the answers may be, must be answered in hearings of this type.  Now the trade-off to removing this protection is that the presiding judicial officer can direct that any such answers given cannot be used directly against the person being questioned in any trial against him or her in the future.

But, in my view, the greater worry lies with the use of such answers can be put in furtherance of an investigation into that person and any criminal activity that the police may be seeking to prefer against him or her in the future.

Derivative Evidence

This concept and how it can be used is very unclear when it comes to these sorts of compulsory Inquiries.  The concept itself means evidence derived from a primary source of evidence.

In practical terms, it means the evidence gathered as a result or from the forced answers given by an individual at one of these hearings.

So, the Commission may prohibit the evidence given by the person forced to testify from being used against them in later proceedings, but that doesn’t stop law enforcement from using that very same evidence to guide them in gathering non-excluded evidence for use against that witness in some later proceedings.

An easily digestible example of this is when an accused person gives a comprehensive version of the events about which he or she is being examined at the Commission, including the names of possible witnesses and/or other corroborative evidence.

Whilst the Commission can order that this evidence not be used against that witness in a subsequent criminal proceeding, law enforcement has now identified for them other witnesses with whom they can speak to make a case against that witness, or equally so, other varieties of evidence that might piece together such a case.

So How Do Courts Treat This?

This is not a new issue. It’s even been ventilated in the High Court.

In the case of Strickland (a pseudonym) v Director of Public Prosecutions (Cth) – [2018] HCA 53, it was confirmed that there was no “derivative use immunity”.

And that “If a compulsory examination were conducted lawfully any subsequent disclosures ……could be made available to law enforcement agencies to assist with, for example, narrowing document searches, preparing for interviews with other witnesses, and preparing a brief of evidence.  And that derivative evidence would also be able to be adduced as evidence in a subsequent trial.”

What To Do When Faced With This

To date, the only apparent method of ensuring that this practice is not applied is to ensure the coercive proceedings are genuinely commenced, and carefully consider the admissibility of each question asked because the responses are admissible at these hearings but the result of them can be questioned at any subsequent criminal trial.

In the recent case of SQH v Scott [2022] QSC 16, the potential incriminating use of derivative evidence was argued to give rise to a reasonable excuse not to answer questions in these hearings.

The court, though, said “..the use of derivative evidence does not necessarily prejudice a fair trial. It will depend on the nature of the evidence and whether it is available from other sources…..If there were a question of unfairness in the adducing at trial of evidence thus obtained, it would be open for the appellant to apply for its exclusion on the grounds of unfairness under section 130 Evidence Act.”

The foregoing was an interesting feature of these types of matters which I thought would demonstrate that, despite conventional thinking, the role of a competent criminal lawyer in them is extremely important.

Naturally, I am very pleased to offer my assistance to anyone who finds themselves in this predicament. For help and legal advice, contact Michael McMillan on 0409 273 430.