AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 1 July 2002

DPP v Green

[2002] NSWSC 594

Public order & justice offences
CRIMINAL LAW: APPEAL FROM LOCAL COURT

Citation: DPP v Green [2002] NSWSC 594
Court: Supreme Court of New South Wales (Common Law Division)
Date: 1 July 2002
Judge(s): Hidden J

Background

The defendant attended an interview with ICAC investigators in December 1996 in connection with an inquiry into practices of certain Aboriginal Land Councils in New South Wales. He provided answers about the purchase and billing of mobile phones. Several months later, at a public ICAC hearing in June 1997, he gave evidence in which he allegedly admitted to having lied to investigators during that earlier interview.

Before giving evidence at the public hearing, the defendant obtained a declaration under section 38 of the Independent Commission Against Corruption Act 1988 (the ICAC Act), which meant all his answers were treated as given on objection. This mechanism is designed to protect witnesses against self-incrimination.

The DPP subsequently laid two informations against the defendant under section 80(c) of the ICAC Act, alleging he had wilfully made false statements to an officer of the Commission. The prosecution sought to rely on the transcript of the defendant's ICAC hearing evidence to prove the alleged false statements. A magistrate dismissed both informations, finding the transcript inadmissible. The DPP appealed to the Supreme Court.

  • Whether the protection afforded by section 37(3) of the ICAC Act, which renders a witness's answers at a Commission hearing inadmissible in civil or criminal proceedings, applied to prosecutions brought under section 80(c) of the same Act.
  • Whether section 37(4)(a), which removes that protection in "proceedings for an offence against this Act," extended to charges under section 80(c) for making false statements to an officer of the Commission outside a formal hearing.

Decision

The magistrate had ruled the transcript inadmissible on the basis that the section 37(3) protection applied. Her Worship reasoned that section 37(4)(a) should be read narrowly, confining its removal of immunity to proceedings for offences such as making false statements on oath at a Commission hearing, not to false statements made to officers outside a hearing. She drew on the general policy of the ICAC Act, which is to encourage candour, and applied a construction that read the protection generously and the exception to it narrowly.

Hidden J rejected that interpretation. His Honour held that the magistrate's reading could not stand against the plain language of section 37(4)(a). That provision removes the section 37(3) immunity in any proceedings for an offence against the ICAC Act. The informations before the magistrate were plainly prosecutions for offences against the ICAC Act, specifically section 80(c). Counsel for the defendant conceded before the Supreme Court that no other view was reasonably open.

Accordingly, Hidden J found that the magistrate had fallen into error. The transcript of the ICAC hearing was not shielded by section 37(3) in these proceedings, and its exclusion on that basis was wrong. His Honour expressly left open all other bases on which the admissibility of the transcript might be challenged, including grounds arising from the Evidence Act 1995, as those had not been argued before him.

Orders Made

  • The magistrate's orders dismissing the two informations were quashed.
  • The two informations were remitted to the magistrate to be dealt with according to law.
  • The defendant was ordered to pay the Director's costs, with a certificate granted under section 6 of the Suitors Fund Act.

Key Takeaways

  • Under section 37(4)(a) of the ICAC Act, the testimonial immunity in section 37(3) does not apply where the proceedings are for an offence against the ICAC Act itself, regardless of whether the offence involves conduct at a formal hearing or dealings with an officer of the Commission outside a hearing.
  • A narrow construction of section 37(4)(a), limiting its scope to offences committed at formal ICAC hearings, was rejected as inconsistent with the provision's plain language.
  • The section 37(3) protection remains available in most civil and criminal proceedings, but its removal under section 37(4)(a) applies broadly to any prosecution under the ICAC Act.
  • In remitting the matter, the Supreme Court left undisturbed any remaining evidentiary challenges under the Evidence Act 1995, confirming that ruling on one admissibility ground does not foreclose others.
  • Where a defendant seeks a section 38 declaration treating answers as given on objection, that step does not automatically preserve immunity in proceedings that fall within the exceptions enumerated in section 37(4).

Legislation and Cases Referenced

Legislation:
- Independent Commission Against Corruption Act 1988 (NSW), ss 37, 38, 80(c)
- Justices Act 1902 (NSW), Pt 5
- Evidence Act 1995 (NSW)
- Suitors Fund Act (NSW), s 6

Cases: No cases were identified by name in the provided judgment text.