Author: Rozenes, M. Date: 29/09/1994 Venue: Fifth International Criminal Law Congress, September 25-30 1994, Sydney As this paper was in preparation the Italian government took a courageous step - courageous in the "Yes Minister" sense, meaning politically unwise. It issued a decree revoking the extraordinary powers given to anti-corruption prosecutors thereby freeing a number of suspects from pre-trial detention. Such "courage" was short-lived. Following threats of resignation from the popular crime fighters and community outrage, the powers were restored. Civil libertarians would argue that this illustrates the difficulty in regaining civil rights once they have been suspended and that civil rights should not be suspended no matter how serious the problem. Law enforcement agencies would draw attention to the serious corruption problem in Italy and the overriding need to ensure in the public interest that corruption and organised crime does not go unpunished so that it becomes systemic. As in Italy, Australian governments have tackled the problems of corruption and organised crime by establishing specialist investigative agencies with coercive powers not available to conventional police forces. These agencies, the National Crime Authority, the New South Wales Crime Commission, the Independent Commission Against Corruption in New South Wales and the Criminal Justice Commission in Queensland were given powers which, while not on the scale of the powers given to corruption fighters in Italy, were considered essential as conventional police methods had failed to address these problems. The first of the crime commissions, the National Crime Authority, was established in 1984 following the reports of a number of royal commissions on the nature and extent of organised crime in Australia. The New South Wales Crime Commission had its genesis as the State Drug Crime Commission in response to organised crime particularly drug related organised crime in New South Wales. The Independent Commission Against Corruption arose from allegations of widespread official corruption in New South Wales and the Criminal Justice Commission was established following a recommendation of the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (the Fitzgerald Inquiry) in Queensland. While these crime commissions were created by governments, they are also to a large extent creations of the media. Media reports of corruption and organised crime and of the findings of royal commissions in these areas ensured that there was public support for ongoing bodies with special powers to combat these menaces. However, while governments establish crime commissions for much the same reason as they establish royal commissions, as much as they wish to bring matters to light they also wish to bring offenders to court. Yet the powers and resources which enable the crime commissions to collect information on complex and far-reaching criminal activities and criminal connections are in some ways incompatible with the focussed investigation of individual offences and the subsequent trial of individual offenders. This paper addresses the difficulties in reconciling the role of a standing royal commission which brings insidious crimes to the light of day and that of an investigating agency which must assemble admissible evidence for a criminal trial. There are tensions evident in the emphasis and scope of the functions of the commissions, in their use of inquisitorial procedures in the course of investigations, and in their coercive evidence-gathering powers which are balanced by provisions limiting the use of such evidence against the witness who provides it.
While the crime commissions have a similar origin and focus, their functions under the legislation reveal an emphasis either on bringing to light the extent of corrupt practices or on investigations which will assemble admissible evidence for criminal prosecution. By community and government expectation and under their legislation, all the crime commissions play a role in assembling admissible evidence, however, while for the NCA and the NSWCC this has been a primary focus, the primary legislative focus of the ICAC and the CJC gives these agencies the nature of standing royal commissions. This paper concentrates on the National Crime Authority to illustrate the effect of its coercive powers on a criminal trial and the way in which its role is changing in relation to criminal investigations. The NCA has both general and special functions. Its general functions include the collection and analysis of criminal information and intelligence relating to criminal activities and its dissemination to law enforcement agencies, the conduct of ordinary investigations into relevant criminal activities and the establishment of, and cooperation with, Commonwealth and State task forces. Its special functions are the investigation of matters relating to a relevant criminal activity where such matters are referred by the Commonwealth Minister or a Minister of a State. These matters are referred through an Intergovernmental Committee of the Commonwealth and State Ministers which must consider, before approving a reference, whether ordinary police methods are likely to be effective. The focus of the NSWCC is similar to that of the NCA. However, while the NCA's general functions focus on criminal intelligence and coordination roles, the State commission's first principal functions are to investigate matters relating to a relevant criminal activity, referred by the Management Committee and to assemble admissible evidence in relation to such a reference. This specific investigative focus of the NSWCC may be contrasted with the New South Wales's corruption commission, ICAC, whose first principal function is a very broad type of investigation picking up not only allegations or complaints but also circumstances which imply that corrupt conduct or conduct which would allow, encourage or cause the occurrence of corrupt conduct or conduct connected with corrupt conduct may have occurred, may be occurring or may be about to occur. This is clearly not an investigation focussed on a subsequent trial but a far reaching inquiry. The other principal functions of the ICAC are also those of a royal commission type body - to report, advise and educate on corrupt practices and strategies to combat their occurrence. However the ICAC has other functions to assemble evidence that may be admissible in prosecution in respect of a State, Commonwealth or Territory law and to furnish that evidence to the appropriate authority. In a similar way the Criminal Justice Commission which was established to address problems of official corruption has responsibilities which extend beyond the area of the administration of criminal justice. Although its primary responsibilities are to acquire expertise in, to monitor and report on the administration of the criminal justice system in Queensland, the Commission is also responsible for discharging functions that cannot be discharged by the police or other agencies in the investigation of organised or major crime. It was envisaged that the Commission would conduct investigations of organised and major crime (other than investigations of the incidence of such crime) for an interim period only. However the Commission may perform functions similar to both the ICAC and the NSWCC. The issue of the CJC's role in relation to ordinary investigations of major crime has recently been raised before a criminal justice committee of the Queensland parliament. The newspaper report reveals accusations that this role which was to be a minor and interim role is expanding. 1
Powers - checks and balances
To perform their functions the crime commissions were given exceptional powers. But there were to be limits on these powers recognising the role the crime commissions play in criminal investigations. For example, in presenting the National Crime Authority Bill to the Parliament,2 the Attorney-General emphasised the need for a new law enforcement body to deal with organised and sophisticated crimes particularly drug importation, corporate fraud and tax evasion - crimes which may not come to the attention of police and, in this context, the government considered that it was necessary for the Authority to have the coercive powers of a royal commission. However, the Attorney-General noted that, while a royal commission has the primary task of establishing the truth of a matter referred to it, the NCA would operate as an arm of the criminal investigation process and gather evidence to be used in criminal prosecutions. There would need to be a balance of powers focussed on the preservation of the witness's privilege against self-incrimination. While the privilege is not available in royal commission hearings, it was to be preserved for NCA hearings except where there was an indemnity against future proceedings. The NCA's coercive powers are contained in Division 1 of Part II of the NCA Act. S25 of that Act enables the Authority to hold hearings for the purpose of a special investigation conducted pursuant to a reference. S28 and 29 empower the Authority to summon witnesses, to take evidence and to obtain documents or things relevant to the investigation. It is s30 which provides that it is an offence for a person to refuse or fail to attend or to produce a document or thing which is the subject of a notice without reasonable excuse. Nevertheless s30(4) preserves the witness's privilege against self incrimination by providing that it is a reasonable excuse for the purposes of subsection (2) if the answer to the question put to the witness or the production of the document or other thing might tend to incriminate the witness. However what subsection (4) giveth, subsection (5) and (7) taketh away. The effect of these latter subsections is to override the witness's privilege against self incrimination if an undertaking has been given to the witness by the Commonwealth DPP and/or a State DPP. The undertaking that may be given to the witness pursuant to those two subsections is, in general terms, that neither the witness's testimony nor any evidence derived either directly or indirectly from the witness's testimony will be used against the witness for an offence other than proceedings in respect of the falsity of the evidence given by the witness. S30 of the NCA Act is mirrored in s18 of the New South Wales Crime Commission Act . In contrast the CJC and ICAC have similar evidence gathering powers but the privilege against self incrimination is specifically eliminated. 3 However, if a witness objects to the giving of evidence or the production of a document or thing, the statement, document or thing may not be used in proceedings against the person.4 This affords significantly less protection than under the NCA/NSWCC regime.
The Effect on the Criminal Trial
I wish to focus on the use of indemnified witnesses in NCA investigations and the ensuing difficulties for the prosecution. Where there is no question of self incrimination, the power to compel witnesses to attend hearings, produce documents or things and answer questions is a useful investigative tool. Witnesses who may be unwilling to cooperate if questioned by the police, and are able to decline to do so, must give documents and evidence to the NCA. This is particularly useful in relation to financial institutions which can be compelled to provide information they would otherwise be unwilling to provide on the grounds of confidentiality. Because of the complexity of organised crime, and the power and resources of those involved which enable them to conceal the offences and the proceeds, the NCA relies on insiders as witnesses. These witnesses who have been involved in activities associated with the offences will not give evidence unless they are protected. The minimum protection they seek is an undertaking under the NCA Act that the evidence they give to the Authority and any evidence derived directly or indirectly from that evidence will not be used against them in subsequent proceedings. The practical effect of granting a witness such an undertaking under either s30(5) or 30(7) of the NCA Act will be to preclude the prosecution of that witness for any offence disclosed in the course of giving evidence unless, before the witness testifies, the prosecuting agency holds sufficient evidence to support a prosecution. If a witness testifies before the NCA and discloses, for the first time, involvement in a criminal activity unrelated to the criminal activity under investigation, they have immunity from prosecution for the disclosed offence. An undertaking given under s30 of the NCA Act is similar to that given under the DPP Act to secure the evidence of a witness for the prosecution. In practice, indemnities under the DPP Act preclude a subsequent prosecution for offences related to the matters raised in the evidence even where other evidence is held. In the same way s30(5) of the NCA Act provides protection against prosecution not only for material before the Authority but for evidence which may be obtained independently following the hearing, as it would be difficult if not impossible to show that there was no link between this evidence and that obtained by the Authority. In fact even if independent evidence is already held it would be difficult to demonstrate that there was no link. Because an undertaking under the DPP Act acts as a barrier to prosecution, it is almost invariably given at the conclusion of the investigation when an accomplice's account of the role he or she played in the offence can be tested against the available evidence. Before granting an indemnity it is essential in the public interest for a prosecuting agency to be aware of the background of a witness and the necessity and importance of the evidence to be given by that witness. In respect of undertakings under the DPP Act, the Prosecution Policy of the Commonwealth states that undertakings to accomplices will be a course of last resort and will only be given provided that the evidence of the accomplice is necessary to secure the conviction of the accused, that the evidence is not available from other sources, and the accomplice can be regarded as significantly less culpable than the defendant. These questions cannot be answered at an early stage of the investigation. However undertakings are requested by the NCA are requested at such an early stage before the necessary information is available. At this stage it is difficult to assess whether the witness is a big fish or a mere minnow. As a matter of principle we do not believe that investigators should begin with the view that the only way to get sufficient evidence will be through an indemnified witness. It is often the case that sufficient admissible evidence could be obtained without an indemnity, yet in the past, cases have been presented to us where the investigation strategy has revolved solely around an indemnified witness. In effect we have been presented with a fait accompli where other means could have been used to secure the conviction of the principal offender. We can be left with the primary evidence coming from a witness who, at best, lacks credibility and at worst does not come up to proof. This is a practical consideration for our policy that an indemnity is a matter of last resort and that, where accomplices are indemnified, it is preferable if they plead to a charge which represents their criminality. Given the problems with indemnified witnesses the power to suspend the privilege against self incrimination may be of little value to agencies such as the NCA and the NSWCC whose primary function is to gather sufficient admissible evidence to support a prosecution.5 On the other hand, this power may be a far more useful weapon in the hands of agencies such as ICAC whose primary function is to get at the truth and for whom securing convictions is a secondary aim. However, while the ICAC may be prepared to pay the price of foregoing the prosecution of certain individuals who appear as witnesses, the ICAC Act places no restriction on the use of derived material. I wish to make an additional observation on the powers of crime commissions as they relate to the gathering of evidence for a criminal trial. As is the case with royal commissions, matters referred to crime commissions are more far reaching than a single criminal investigation. They customarily involve task forces collecting and assessing a magnitude of documents, statements and real evidence. At a time when the problems of presenting complex matters within the structure of a jury trial is a matter of concern, the broad scope of investigations and the evidence gathering powers and capacities of the crime commissions may also have an adverse effect on the efficiency of the trial.
Investigations and Civil Rights
In discussing the effect of crime commission investigations on civil rights, what is at issue is the different techniques employed in an investigation and in proving a case in court. An investigation customarily begins with no target and no clear idea of what, if any, charges will be laid. There will be numerous leads and a great deal of information to be tested and assessed by a number of methods. This differs from the position at a criminal trial where, as Frank Costigan QC notes "when a person is charged with a crime he is entitled to expect that the Crown case will be supported by hard admissible evidence to be tested by accepted legal principles." 6 Robert Richter QC in a paper to the NCA/ Victorian Council of Civil Liberties Conference on Liberty, Law Enforcement and Accountability described the use of compulsory powers by the NCA as upsetting the delicate balance of the adversarial system which is dependent upon an acceptance of safeguards for the suspect. "Once these basic safeguards are eroded, the targeted individual is put through the inquisitorial process, and having delivered himself or herself into the hands of the interrogator/prosecutor, is then served up to the judicial system for dispatch, the balance having been completely shifted to the inquisition."7 He describes the practices of the NCA as posing a grave threat to suspects or "targets' of NCA investigations, the threat arising from the secrecy of the investigations which means that the suspect is not aware of the real allegations, what evidence is held or how serious the allegations may be. By the time the target is summoned to give evidence the case may be set in cement, indemnified witnesses will be locked into giving the account given to the NCA as evidence because they will be charged if they do not adhere to it and there is no opportunity for the suspect to confront them or cross examine them.8 There is no doubt that the powers exercised by the commissions represent an encroachment on the rights of the suspect at the investigation stage. However some of this encroachment upon civil rights may be illusory. A suspect in a police investigation is likewise unable to challenge much of the evidence or to cross-examine witnesses. The power to compel the production of documents and things which, given the limited use of indemnities by the NCA and the NSWCC, can be particularly useful is usually unaffected by the privilege against self incrimination. However, in a general investigation, these items can be seized under search warrant so the real benefit of the compulsory powers will be in locating the items. This is not to say that there has not been a significant shift in the rights of a suspect. Undertakings given pursuant to the NSWCC Act or the NCA Act effectively reinstate the privilege against self incrimination but they do not reinstate the right of silence at the investigation stage. There remains a compulsion to appear and answer questions. Lord Mustill in Reg v Serious Fraud Office, Ex parte Smith in examining the powers of the Serious Fraud Office in the United Kingdom described the right of silence as including a general immunity from being compelled on pain of punishment to answer questions posed by any person or body and a "specific immunity, possessed by all persons under suspicion of criminal responsibility whilst being interviewed by police officers or others in similar positions of authority, from being compelled on pain of punishment to answer questions of any kind."9 The question of a person's right to refuse to answer questions put by the NSWCC for reasons other than the privilege against self incrimination was considered by the New South Wales Court of Appeal in Ganin v NSW Crime Commission10. In examining the scope of the suspect's "reasonable excuse" not to give evidence to the commission under s18 of the Act, the court held that the provision was cast in very general terms. The court also held that while there were provisions of s18 which spelt out some of the circumstances which would constitute a reasonable excuse on the grounds of self incrimination these "do not exhaust the generality of the excuse for the refusal to answer a question.11 In this regard the court referred to the objections made by the appellants that a knowledge of guilt may be revealed in the enforced answers and that the enforced answers may encourage the prosecution to proceed against the appellants on other evidence. On a practical level, however, the objections raised would not affect the position of the witness in a criminal trial. While answers given in proceedings before the Commission could encourage a prosecuting authority to believe in the guilt or involvement of a witness in criminal activities there can be no subsequent prosecution unless there is admissible evidence and there will be no admissible evidence arising from the evidence given or evidence derived from it . There can be no subsequent proceedings unless there is independent evidence to support proceedings for an offence other than that raised in the commission proceedings. And, as noted above the effect of the undertakings given is to effectively preclude any prosecution for an offence raised in the commission proceedings. Richter's major criticism is of the secrecy of NCA's investigations as a threat to the suspect summoned before the NCA . Yet although, the investigative powers of the NCA and the NSWCC are inquisitorial, they are exercised at the investigation stage and therefore secrecy is essential particularly in the interests of a fair trial. Whatever information has been obtained or revealed during the investigation, only admissible evidence should be presented at a subsequent trial. In this regard, the use of public hearings by the ICAC has been strongly criticised, both because of the possible effect on a criminal trial and because it can amount to a trial by media in which a person's reputation may be irrevocably damaged by hearsay evidence. The ICAC defends its public hearings as they expose corruption to public view thereby alerting the public to the extent of these practices, they enlist support for anti-corruption measures and they act as a powerful disincentive to those involved. At an early stage in the ICAC's history, the first Commissioner, Ian Temby QC, defended the use of public hearings as leading to a useful flow of information "of inestimable benefit to the conduct of a thorough and proper investigation" and on the basis that the powers of the commission should be exercised in public to reduce abuse and to contribute to public confidence in the body.12 He noted that hearsay evidence may also be heard in a court of law and that no finding will be made against anybody unless they have had a proper opportunity to be heard. This defence has not been accepted. Peter McClellan QC in his paper 'ICAC: a barrister's perspective'13 provides specific examples of the difficulties experienced by people who have been the subject of hearsay assertions in the Commission's hearings. The persons described were not subject to criminal prosecution but the resultant media attention meant that the damage to their reputations was extensive and, in some cases, expensive in its effect on businesses. It is of greater concern where the person will be subject to a criminal prosecution. That the person may have their day in court does not resolve the problem of pre-trial publicity and trial by media. Evidence which is not admissible in the trial may already have been reproduced in the media.
Resolving the Roles of Crime Commissions
The crime commissions were set up to do what conventional police forces could not do because of a lack of powers and resources (or in the case of corruption - what the police forces could not be trusted to do). Nevertheless, in reality, the attack on organised crime is now largely in the hands of traditional police forces using task forces and intelligence networks coordinated through the crime commissions, in particular through the NCA. Civil libertarians are not the only ones to question the roles of crime commissions in matters which will be the subject of a criminal trial. In 1993 the Commonwealth undertook a review which examined the roles and effectiveness of Commonwealth law enforcement agencies. The report of the review, in February 1994, concluded that the National Crime Authority played a necessary and important role as a specialised organised crime agency. It concluded also, that it was appropriate for the NCA rather than the Australian Federal Police to coordinate organised crime investigations, amongst other things because of its multi-jurisdictional mandate and its special interrogation powers which the government would not make available to a police force. The AFP has a wider role in criminal investigations but it must react to immediate needs. The difference between the investigations carried out by the NCA and those of the police was outlined by the Chairperson of the NCA in a submission to the review: "Most police investigations are complaint driven and resource limitations place pressure for early results. This is an ineffective way to attack sophisticated organised crime and often results in the arrest of minions (eg drug busts) because the real players keep their distance from the primary criminal activity. The major players can often only be convicted of offences quite minor compared with the extent of their criminality. Often it will require painstaking financial analysis to connect them to criminal activity."14 The review noted that the focus of the NCA has shifted to that of an overall strategist. The NCA coordinates the services of police and other agencies and collects and provides strategic intelligence and uses its special interrogation powers to support this focus. To enable the strategic and coordination aims of the NCA to be realised, therefore, the report proposed a limit on the investigation work of the NCA. "Investigation work by the NCA should be clearly defined and limited. It should aim to develop a picture of criminal organisations by whatever means are appropriate, including field investigation. It should not relate to the investigation of particular offences unless that is specifically agreed with the other investigative police forces or investigative agencies that are participating overall coordinated activity. The whole basis of this approach to the NCA is dependent on it not being seen to do the work of other participating agencies. [As emphasised in the report] 15 Therefore, the review report proposes legislative, resource and staffing changes to strengthen the NCA's coordination role. These changes would inevitably prevent any future shift back to a competing role in traditional investigations. As specialist units and task forces are established by and with the police forces, the focus of state crime commissions is moving in the same direction as the NCA to one of strategy and coordination. However, as the civil libertarians have noted and the Italian experience has shown, once powers are given to law enforcement agencies they do not relinquish them. And, as in Italy, specialist agencies with special powers to respond to organised crime and corruption will remain a permanent part of the law enforcement scene in Australia.
1 'CJC shift to take heat off politicians' Weekend Australian August 27, 1994 page 6. 2 House of Representatives Hansard 7 June 1984. 3 Independent Commission Against Corruption Act 1988 s26; Criminal Justice Commission Act 1989 s94. 4 ICAC Act s26; CJC Act s96. 5 An indication of the limited utility of the s30 undertaking is that less than thirty witnesses appearing before the NCA were granted such undertakings in the first nine years of the NCA's operations (Parliamentary Joint Committee on the National Crime Authority, 1989-90, 1990-91 and 1991-92). 6 Costigan, Frank. QC 'Control of Organised Crime with Reflections on Sydney', in Proceedings of the Institute of Criminology No 67 The Control of Organised Crime 12 March 1986 10, at 13. 7 Richter, Robert QC 'The right of silence: a civil libertarian perspective' Liberty, Law Enforcement and Accountability: a national conference organised by the Victorian Council for Civil Liberties and the National Crime Authority, Melbourne, 18 April 1993. 8 Ibid. p 65 9  3WLR 66 at p 74. 10 (1993) 32 NSWLR 423 11 (per Kirby P at p 435) 12 Temby, Ian, 'Accountability and the ICAC' Australian Journal of Public Administration Vol 49 No 1 March 1990. 13 Current Issues in Criminal Justice, Vol. 2 No. 3 March 1991, p.17. 14 Report of the Review of Commonwealth Law Enforcement Arrangements, February 1994, p 96. 15 Ibid. p100.