Self incrimination, regulators and commissions – do I really have to answer that question? Part 2

This is our second article in this series - the first can be found here. In this article we consider who can receive or make use of the transcript of a compulsory examination - including third parties - and the protections available to a person pleading a defence in court proceedings.

WHO CAN RECEIVE TRANSCRIPTS OF REGULATORS' COMPULSORY EXAMINATIONS?

The prosecutor? The accusatorial judicial process (which is a fundamental right) begins with the laying of charges and ends with the criminal trial. Giving the prosecutor the transcript of an examination conducted under compulsion fundamentally alters the process.

Providing that transcript will be a miscarriage of justice except where legislation makes it clear (expressly or by necessary implication) that:

the transcript can be provided; and that the rights which the examinee would otherwise possess have been varied. Clearly, to know if a miscarriage has occurred, you need to look at the legislation.

ASIC and APRA examination transcripts

As far as ASIC section19 examination transcripts are concerned, there are conflicting decisions at trial.1

In the most recent case, a transcript was provided to the Director of Public Prosecutions (DPP), initially for the purpose of deciding whether charges should be laid. The trial judge found that this was improper, and ordered that the examinee could not be prosecuted by the same DPP team that had received the transcript in order to decide whether to lay charges at the outset. A prosecution could only proceed if run by a different team.

However in a different case under the ASIC Act,2 the NSW Court of Criminal Appeal found that there was a clear implication arising from the ASIC Act that the DPP officers responsible for the conduct of proceedings against an individual could have access to the transcript - not only to formulate the charges, but to also prosecute them. That is because the ASIC Act makes clear that the mechanism to protect an individual from self-incriminating evidence being used against them only operates during the trial if the prosecutor seeks to tender the evidence.

In order to prevent self-incriminating evidence being admitted at trial, two conditions must be satisfied:

When answering a question during an examination, the examinee must have claimed the privilege in respect of their answer before answering the question. At the trial, the court must find that the answer would in fact incriminate the examinee.3 Unless both these conditions...