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High Court of Australia |
ENVIRONMENT PROTECTION AUTHORITY v CALTEX REFINING CO. PTY. LIMITED [1993] HCA 74; (1993) 178
CLR 477
F.C. 93/058
Evidence
HIGH COURT OF AUSTRALIA
MASON CJ(1), BRENNAN(2), DEANE(3), DAWSON(3), TOOHEY(1), GAUDRON(3) AND
McHUGH(4) JJ
CATCHWORDS
Evidence - Privilege - Self-incrimination - Self-exposure to penalty - Whether privilege against self-incrimination applies to corporations Statutory power to require production of documents - Whether available after commencement of proceedings - Notice to produce pursuant to rules of court served on corporation after issue of statutory notice - Whether abuse of process - Whether corporation obliged to produce - Clean Waters Act 1970 (N.S.W.), s. 29(2)(a).
HEARING
CANBERRA, 1992, December 8, 9; SYDNEY, 1993, December 24.ORDER
Appeal allowed with costs.
Answer the questions asked as follows:
1. Whether an incorporated company is entitled to a privilege commonly known
as privilege against self-incrimination.
Answer: No.
2. Whether there is power under s.29(2)(a) of (the Act) enabling the
(appellant) to issue and serve a notice in connection with,
or for the purpose
of, obtaining material for use in a prosecution which at the time of the issue
of that notice is pending before
the Land and Environment Court.
Answer: Yes.
3. Whether the notice issued pursuant to s.29(2)(a) of (the Act) and served on
(the respondent) on 18 April 1991 is a lawful exercise
of power.
Answer: Yes.
5. Whether the service by the (appellant) of a notice to produce on (the
respondent) on 26 April 1991 to produce the same documents
referred to in the
notice under s.29(2)(a) of (the Act) should be set aside as an abuse of the
process of the court.
Answer: No.
6. Whether the privilege against self-incrimination extends to (the
respondent) in respect of the said notice issued pursuant to
s.29(2)(a) of
(the Act).
Answer: No.
7. Whether the privilege against self-incrimination extends to (the
respondent) in respect of the said notice to produce.
Answer: The respondent is entitled to either the privilege against
self-incrimination or the privilege against self-exposure to
a penalty in
respect of the said notice to produce.
DECISION
MASON CJ AND TOOHEY J The appellant, the Environment Protection3. "Whether the notice issued pursuant to s.29(2)(a) ofThe Court of Criminal Appeal answered the questions as follows ((2)
(the Act) and served on (Caltex) on 18 April 1991 is a
lawful exercise of power."
4. "Whether the issue of the notice pursuant to s.29(2)(a)
of (the Act) served on (Caltex) on 18 April in
circumstances where charges had already been laid
pursuant to (the Act) and the matter set down for trial
constituted a contempt of the court by the (appellant)
or authorised officer."
5. "Whether the service by the (appellant) of a notice
to produce on (Caltex) on 26 April 1991 to produce
the same documents referred to in the notice under
s.29(2)(a) of (the Act) should be set aside as an abuse
of the process of the court."
6. "Whether the privilege against self-incrimination
extends to (Caltex) in respect of the said notice
issued pursuant to s.29(2)(a) of (the Act)."
7. "Whether the privilege against self-incrimination
extends to (Caltex) in respect of the said notice to
produce."
8. "Whether a notice under s.29(2)(a) of (the Act) can be
given in terms of the notice the subject of this stated
case in respect of past alleged discharges."
9. "Whether the notice in the form referred to in 8 above
was otherwise within the power contained in the said
s.29(2)(a)."
1. "So far as is relevant for present purposes, yes."
2. "Not where, as in the present case, that is the sole
purpose of the notice."
3. "No."
4. "It would be inappropriate to answer this question upon
the material presently before the Court."
5. "No, it may have a proper purpose to serve as laying
the foundation for the admission of secondary
evidence."
6. "This question does not arise."
7. "Yes."
8. "It is unnecessary, and would be inappropriate, to
answer a question in this form."
9. "Unnecessary to answer."
3. The appellant has appealed to this Court and seeks to have questions 1,
2, 3, 5 and 7 answered as follows:
1. No.
2. Yes.
3. Yes.
5. No.
4. 7. No. The appellant argues that corporations are not entitled to the
privilege against self-incrimination, at least in so far as production
of documents is concerned, and that therefore Caltex must produce the
documents referred to in the notice to produce. The appellant also
challenges the finding of the Court of Criminal Appeal that the s.29
notice issued by the appellant was not a lawful exercise of the power
conferred by that section.
The facts
5. Caltex carries on activities that involve it in the discharge of
pollutants into the ocean. Such discharge is illegal under
s.16(1) of
the Act which provides:
"A person shall not pollute any waters."Sub-sections (3) and (4) of s.16 respectively provide alternative
"Notwithstanding the foregoing provisions of thisThe Act operated in conjunction with the SPCC Act, and licences were
section it shall not be an offence arising under those
provisions for a person to pollute any waters if he holds a
licence and does not pollute the waters in contravention of
any of the conditions of the licence."
"(A)ny person who, being the holder of a licence,
contravenes any condition of the licence is guilty of an
offence against this Act".
6. Caltex was the holder of an annual licence permitting the company to
discharge certain quantities and types of waste into the
ocean.
The licence contained a number of conditions, including a requirement
that the respondent monitor and record certain information in relation
to the discharge of pollutants and provide the results of the
monitoring to the appellant in graphical and statistical form with its
application for renewal of its licence.
7. In March 1990 the appellant charged Caltex with eleven offences under
s.16(1) of the Act and s.17D(9) of the SPCC Act alleged
to have
occurred on 7, 10 and 21 December 1989 and 13 and 18 January 1990.
The charges alleged pollution of waters of the Pacific Ocean at Yena
Gap by the discharge of grease and oil and breaches of the licence
held by Caltex.
8. On 18 April 1991, Caltex was served with a s.29 notice. Section 29(2)(a)
of the Act provides:
"An authorised officer may, by notice in writing,Caltex, by a notice of motion, challenged the validity of the s.29
require:
(a) the occupier of any premises from which pollutants
are being or are usually discharged into any
waters to produce to that authorised officer any
reports, books, plans, maps or documents relating
to the discharge from the premises of pollutants
into the waters or relating to any manufacturing,
industrial or trade process carried on on those
premises".
9. The Court of Criminal Appeal (Gleeson CJ, Mahoney JA. and McLelland J)
concluded that the s.29 notice was invalid and that
the
privilege does apply to corporations ((3) The decision of the Court
of Criminal Appeal was applied by Abadee J (with whom Carruthers and
Badgery-Parker JJ agreed) in Australian Iron and Steel Pty. Ltd. v.
Environment Protection Authority (1992) 29 NSWLR 497, at p.515.) .
Consequently, Caltex was entitled to resist production of documentsunder both the notice to produce and the s.29 notice.
The notice to produce
10. There is no dispute in this case that the notice to produce was validly
issued. The only question that arises in relation
to the
notice to produce is whether a corporation is entitled to rely on the
privilege against self-incrimination. It is convenient, therefore, to
deal first with the notice to produce, even though it was issued after
the s.29 notice.
The state of authority in this Court in relation to the privilege
against self-incrimination in its application to corporations
11. In three cases in this Court, Murphy J expressed the view that the
privilege could not be claimed by artificial legal entities
such
as corporations ((4) Rochfort v. Trade Practices Commission [1982] HCA 66; (1982)
153 CLR 134, at p.150; Pyneboard Pty. Ltd. v. Trade Practices
Commission [1983] HCA 9; (1983) 152 CLR 328, at pp.346-347; Controlled Consultants
Pty. Ltd. v. Comissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385,
at p.395.). He based his view on the proposition that
the privilege is "peculiarly a human right and thus not available
to corporations or unincorporated associations or political
entities" ((5) Controlled Consultants (1985) 156 CLR, at p.395.)
and concluded that only natural persons on their own behalf can claim
the privilege. However, no other member of this Court has endorsed
that view. Indeed, in two cases, the Court has expressly left the
question open ((6) Pyneboard (1983) 152 CLR, per Mason ACJ,
Wilson and Dawson JJ at p.335; Controlled Consultants (1985) 156
CLR, per Gibbs CJ, Mason and Dawson JJ at p.394.). As there is
no Australian authority determinative of the issue, it is appropriate
to examine the rationales for the privilege (both historical and
modern) and also to review the judicial decisions in other common law
jurisdictions with a view to determining whether, in Australia, the
privilege should apply to corporations, at least in relation to
production of documents.
The United States authorities
12. It is convenient to turn, first, to the American authorities because
they comprehensively deal with the issue of corporate
self-incrimination privilege. The American authorities establish
that, in the United States, artificial entities, including
corporations, are not able to claim the privilege. In Campbell
Painting Corp. v. Reid ((7) [1968] USSC 135; (1968) 392 US 286, at p.288.), Fortas
J said:
"It has long been settled in federal jurisprudence thatThe United States context is different from the Australian context
the constitutional privilege against self-incrimination
is 'essentially a personal one, applying only to natural
individuals'".
13. It was first decided in 1906 in Hale v. Henkel ((8) [1906] USSC 55; (1906) 201 US 43.)
that a corporation may not claim the privilege against
self-incrimination. In rejecting the appellant's claim to the privilege
by way of response to a subpoena duces tecum to produce documents of a
corporation of which he was secretary and treasurer, the Supreme Court
held that the right of the witness under the Fifth Amendment not to
incriminate himself was a purely personal privilege. He could not
plead the fact that some third person might be incriminated, even
though he were the agent of that person ((9) ibid., at pp.69-70.).
The Court went on to hold that a corporation cannot claim the privilege
against self-incrimination. Brown J, delivering the opinion of the
Court, said ((10) ibid., at pp.74-75.):
"Upon the other hand, the corporation is a creature
of the State. It is presumed to be incorporated for the
benefit of the public. It receives certain special
privileges and franchises, and holds them subject to the
laws of the State and the limitations of its charter. Its
powers are limited by law. It can make no contract not
authorized by its charter ... There is a reserved right in
the legislature to investigate its contracts and find out
whether it has exceeded its powers. It would be a strange
anomaly to hold that a State, having chartered a corporation
to make use of certain franchises, could not ... inquire how
those franchises had been employed, and whether they had
been abused, and demand the production of the corporate
books and papers for that purpose."
14. The idea that "the corporation is a creature of the State" and that its
"powers are limited by law" as a rationale for precluding
a
corporation from claiming the privilege has been supplemented by the
recognition that it would be difficult to enforce the law against
corporations if their records were subject to the privilege. In
United States v. White ((11) [1944] USSC 109; (1944) 322 US 694, at p.700.), Murphy
J referred to this important practical consideration in these terms:
"The greater portion of evidence of wrongdoing by an
organization or its representatives is usually to be found
in the official records and documents of that organization.
Were the cloak of the privilege to be thrown around these
impersonal records and documents, effective enforcement of
many federal and state laws would be impossible."
15. In other cases ((12) Wilson v. United States [1911] USSC 98; (1911) 221 US 361; Dreier
v. United States (1911) 221 US 394; Wheeler v. United
States
[1913] USSC 21; (1913) 226 US 478; Grant v. United States [1913] USSC 27; (1913) 227 US 74;
Bellis v. United States (1974) 417 US 85, at pp.88-91.), the Supreme
Court has held consistently to the view that the privilege is "limited
to its historic function of protecting only the natural individual from
compulsory incrimination through his own testimony or personal records"
((13) White (1944) 322 US, at p.701.).
16. In Bellis v. United States, the Court noted that it was established
that ((14) (1974) 417 US, at p.88.):
"an individual cannot rely upon the privilege to avoidThis principle has been held to apply to unions ((15) United States v.
producing the records of a collective entity which are in
his possession in a representative capacity, even if these
records might incriminate him personally".
17. Bellis makes clear the modern American analysis, which is that, first,
a collective entity has no right to refuse to incriminate
itself and, second, when a person is required to produce the records
of such an entity, that person "assume(s) the rights, duties and
privileges of the artificial entity" ((17) (1974) 417 US, at p.90;
White (1944) 322 US, at p.699.) of which he or she is an agent or
officer. Thus, a corporate officer of a corporation required to
produce documents cannot claim his or her own personal privilege
against self-incrimination in relation to production of corporate
documents.
18. That proposition generated a conflict of opinion more recently in
Braswell v. United States ((18) (1988) 487 US 99.). Braswell
claimed he would be incriminated by production of the corporate
documents he was subpoenaed to produce. He could not claim privilege
on behalf of the company, as the company had no privilege. However, he
claimed that he should not be required to produce the documents on the
basis of a personal claim to privilege, notwithstanding Bellis which
would support a denial of the claim to personal privilege in those
circumstances. His claim was based on earlier decisions ((19) Fisher
v. United States [1976] USSC 65; (1976) 425 US 391, at pp.410-411; United States v.
Doe [1984] USSC 44; (1984) 465 US 605.) which had drawn a distinction between the
contents of business documents (which are not privileged) and the act
of producing documents (which may be). The distinction rests on the
premises that testimony is protected and production of documents is
testimonial in nature, whereas corporate documents are not testimony.
The Court, by a bare majority, held that Braswell's claim to privilege
could not be sustained.
19. In Braswell, the majority confirmed that the collective entity rule
precluded a corporation from claiming the privilege, stating
that ((20) (1988) 487 US, at pp.109-110.):
"the custodian of corporate or entity records holds
those documents in a representative rather than a
personal capacity ... (A) custodian's assumption of his
representative capacity leads to certain obligations,
including the duty to produce corporate records on proper
demand by the Government. Under those circumstances, the
custodian's act of production is not deemed a personal act,
but rather an act of the corporation. Any claim of Fifth
Amendment privilege asserted by the agent would be
tantamount to a claim of privilege by the corporation -
which of course possesses no such privilege."
20. The majority distinguished between production of documents (where a
records custodian may not claim a personal privilege)
and oral
testimony (where a records custodian or other corporate agent may
claim a personal privilege). In the view of the majority, allowing
corporate agents to claim a personal privilege would hamper the
prosecution of "white-collar crime", in relation to prosecution both
of individuals and of corporations ((21) ibid., at pp.115-116.).
However, although the corporate agent could claim no privilege in
respect of production of corporate documents, the testimonial aspect of
compliance with the subpoena, that is, the fact of production by the
agent, could not be used against the agent. Only the contents of the
documents, which are non-testimonial, and their production by the
corporation can be used against the agent ((22) ibid., at p.118.).
The English authorities
21. The accepted position in England is that a corporation may claim
privilege against self-incrimination: In re Westinghouse
Uranium
Contract ((23) (1978) AC 547.). In that case, the House of Lords
followed an earlier Court of Appeal decision, Triplex Safety Glass Co.
v. Lancegaye Safety Glass (1934) Ltd. ((24) (1939) 2 KB 395.). In
the speeches in Westinghouse, however, there is no discussion of
whether the privilege is available to corporations; it is simply
assumed that it is.
22. In Triplex, du Parcq LJ, delivering the judgment of the Court, followed
the Canadian decision Webster v. Solloway Mills and
Co. ((25)
(1931) 1 DLR 831.) and held that a corporation is entitled to claim
the privilege. His Lordship stated that ((26) (1939) 2 KB, at
p.409.):
"(i)t is true that a company cannot suffer all the pains to
which a real person is subject. It can, however, in certain
cases be convicted and punished, with grave consequences to
its reputation and to its members, and we can see no ground
for depriving a juristic person of those safeguards which
the law of England accords even to the least deserving of
natural persons. It would not be in accordance with
principle that any person capable of committing, and
incurring the penalties of, a crime should be compelled by
process of law to admit a criminal offence."
23. However, more recently, the extensive protection given by the privilege
has come under trenchant judicial attack in the Court
of Appeal and the House of Lords. In British Steel v. Granada
Television ((27) (1981) AC 1096, at p.1127.), Lord Denning MR
boldly asserted that:
"in these courts, as in the United States, the privilege isIn Istel Ltd. v. Tully ((28) (1993) AC 45, at p.53.), Lord
not available to a corporation. It has no body to be kicked
or soul to be damned. The public interest lies much more in
making corporations disclose their misdeeds than in giving
them this shield of privilege."
"It is difficult to see any reason why in civil proceedingsLord Griffiths agreed with the last sentence in the passage just
the privilege against self-incrimination should be
exercisable so as to enable a litigant to refuse relevant
and even vital documents which are in his possession or
power and which speak for themselves ... I regard the
privilege against self-incrimination exercisable in civil
proceedings as an archaic and unjustifiable survival from
the past when the court directs the production of relevant
documents and requires the defendant to specify his dealings
with the plaintiff's property or money."
The Canadian authorities
24. In Webster v. Solloway, which was followed by the English Court of
Appeal in Triplex, the Supreme Court of Alberta considered
that
there was no reasonable ground to support the argument that the
privilege be limited to natural persons. The decision is based on
the assumption that the privilege is available to corporations and,
to the extent that the position has not been modified by legislation,
the decision affirms that the privilege is firmly established and
continues to exist. The decision does not examine the rationale for
the privilege.
25. The approach adopted in Webster v. Solloway was applied in subsequent
cases so that the privilege has been held to apply to
a
corporate officer claiming the privilege on behalf of the corporation
as well as to the corporation itself, though the officer cannot claim
personal privilege in relation to documents of the corporation ((32)
Klein v. Bell (1955) 2 DLR 513, at pp.523-524.). So, in Canada, any
officer subpoenaed to produce corporation documents can refuse to
produce them on the basis that the corporation would be incriminated.
However, in cases in which an officer of a corporation is called as a
witness, that officer speaks in his or her own right, rather than as
the mouthpiece of the corporation, and is therefore entitled to claim a
personal privilege, but not to claim the privilege on behalf of the
corporation ((33) Reg. v. Judge of the General Sessions of the Peace
for the County of York; Ex parte Corning Glass Works of Canada Ltd.
(1970) 16 DLR (3d) 609, at p.613.).
26. The Canadian Charter of Rights and Freedoms has altered the common law
position in Canada. Under s.11(c) of the Charter,
only a
witness is afforded the privilege. In Reg. v. Amway Corp. ((34)
(1989) 56 DLR (4th) 309.), the Supreme Court of Canada held that a
corporation is not, and cannot be, a witness; the officer giving
evidence is the witness, not the corporation. The Court distinguished
Webster v. Solloway and Triplex on the basis that they applied the
common law right which was not limited to the protection of witnesses
((35) ibid., at pp.321-322.). The Court held that, when an officer of
a corporation testifies on discovery, the corporation is not a witness
and therefore the Charter protection does not extend to discovery from
a corporation. Sopinka J, delivering the judgment of the Court,
stated that s.11(c) is ((36) ibid., at p.323.):
"intended to protect the individual against the affront toSopinka J went on to observe that corporations are compellable at
dignity and privacy inherent in a practice which enables
the prosecution to force the person charged to supply the
evidence out of his or her own mouth. Although disagreement
exists as to the basis of the principle against
self-incrimination, in my view, this factor plays a dominant
role."
The New Zealand authorities
27. In New Zealand Apple and Pear Marketing Board v. Master and Sons Ltd.
((37) (1986) 1 NZLR 191.), the defendant refused to
allow
the plaintiff to inspect apples held by the defendant, on the basis of
privilege against self-incrimination. The New Zealand Court of Appeal
held that a claim of privilege could be made on behalf of a
corporation. The Court rejected the approach taken by Murphy J in
Pyneboard, and went on to say ((38) ibid., at p.196.):
"There seems no policy reason why a corporation shouldThe Court also considered that, because small family businesses are
not avail itself of the rule. A corporation acts and makes
statements through certain responsible officers ... It
is identified in law with the acts and defaults of its
directors and officers, and it may make admissions through
them. Indeed, in this case ... the actions and statements
of the directors ... led to the bringing of the charge ...
If then the prosecution may prove its case by the out of
Court statements of its directors, it seems reasonable that
the company should be entitled to claim self-incrimination
when it speaks through them."
"(i)t would be unrealistic to deny the directors and other
officers of those companies the right to plead incrimination
just because they have changed the legal status of the
business for considerations which are irrelevant to the
issue of self-incriminating admissions".
What does the review of the authorities establish?
28. The review of authorities in other common law jurisdictions reveals
that, at common law, the privilege is available to
corporations in England, Canada and New Zealand, according to the
decisions of the highest courts in those countries, though the
privilege in some of its manifestations has recently encountered
severe judicial criticism in England. Absent a decision by this
Court, professional understanding in Australia, based on the practice
of trial courts which, in turn, has reflected the past English
practice, is that the privilege is available to corporations. On the
other hand, in the United States, the privilege is not available to
corporations. Although the decisions of the United States Supreme
Court give effect to the Fifth Amendment to the United States
Constitution, the reasoning is directly relevant to the purposes which
the privilege serves at common law; if accepted, that reasoning would
support the conclusion that the privilege is not, and should not be,
available to corporations.
29. The contrary rule, which has been accepted in jurisdictions outside the
United States, appears to rest on the assumption or
conviction that there is no reason why a corporation should not be
entitled to enjoy the privilege. In the cases in those jurisdictions,
the purpose of the privilege has not been examined closely with a view
to ascertaining whether it is available to corporations, with the
possible exception of the judgment of du Parcq LJ in Triplex. As
we have already noted, his Lordship pointed out that, although a
corporation cannot suffer all the pains to which a real person is
subject, a corporation can be convicted and punished "with grave
consequences to its reputation and to its members". And his Lordship
went on to observe that "(i)t would not be in accordance with
principle that any person capable of committing, and incurring the
penalties of, a crime should be compelled by process of law to admit a
criminal offence" ((40) (1939) 2 KB, at p.409.).
30. In the light of these conflicting approaches, it is necessary now to
examine the historical basis of the privilege and its
modern
rationale. Having undertaken that examination, it will be convenient
then to take account of the concluding comment of du Parcq LJ to
which we have just referred.
The historical basis of the privilege
31. According to Wigmore on Evidence ((41) McNaughton rev. 1961, pp.269,
277-292.), the historical basis of the privilege against
self-incrimination had two strands. The first was the common law's
reaction against the use of the ex officio oath by ecclesiastical
courts and the Court of Star Chamber and against the unjust methods of
interrogating accused persons, culminating in 1645 in a declaration
that the use of the oath was unlawful ((42) Lilburn's Trial (1645) 3
How St Tr 1315, summarized in Wigmore, op cit, pp.282-283; and see
Hammond v. The Commonwealth [1982] HCA 42; (1982) 152 CLR 188, per Brennan J at
p.203 citing Brown v. Walker [1896] USSC 83; (1896) 161 US 591, per Brown J at
pp.596-597.); the second was the subsequent recognition of the
privilege in common law trials. By the second half of the seventeenth
century, the privilege was well established at common law ((43) See,
e.g., Scroop's Trial (1660) 5 How St Tr 1034; Crook's Trial (1662) 6
How St Tr 201; Penn's and Mead's Trial (1670) 6 How St Tr, cited in
Wigmore, op cit, p.290.), which affirmed the principle nemo tenetur
accusare seipsum or "no man is bound to accuse himself" ((44) Cited in
Wigmore, op cit, p.290.).
32. Historically, the privilege developed to protect individual human
persons from being compelled to testify, on pain of excommunication
or physical punishment, to their own guilt. At the time of the
development of the privilege in relation to proceedings in the Star
Chamber and the High Commission, private corporations as we know them
today were not a concept known to the law, although corporations
established by Royal Charter were in existence. Such corporations as
did exist, however, were not subject to the procedures and abuses of
the Star Chamber and the High Commission - they were simply not in
contemplation of those bodies. Hence, the privilege was not initially
developed with corporations in mind as potential beneficiaries of the
privilege; nor are corporations able to suffer the wrongs associated
with the ex officio oath, namely, excommunication and physical
punishment. This conclusion, however, does not necessarily dispose of
the question whether the privilege is available to corporations.
The modern rationale for the privilege
33. In one important sense, the modern rationale for the privilege against
self-incrimination is substantially the same as the
historical
justification - protection of the individual from being confronted by
the "cruel trilemma" of punishment for refusal to testify, punishment
for truthful testimony or perjury (and the consequential possibility
of punishment). Naturally, methods of punishment are now different:
modern-day sanctions involve fines and/or imprisonment, rather than
excommunication or physical punishment. Further, the philosophy
behind the privilege has become more refined - the privilege is now
seen to be one of many internationally recognized human rights. As
Murphy J commented in Rochfort v. Trade Practices Commission ((45)
[1982] HCA 66; (1982) 153 CLR 134, at p.150.):
"The privilege against self-incrimination is a human right,This was echoed by the Supreme Court of Canada in Amway ((46) (1989)
based on the desire to protect personal freedom and human
dignity."
"is an explicit right of a natural person, protecting the
realm of human thought and expression".
34. The right not to be compelled to testify against oneself or to confess
guilt is embodied in Art.14(3)(g) of the International
Covenant on Civil and Political Rights. The language of that Covenant
makes it clear that the purpose of its provisions is to protect
individual human beings. As this Court has recognized, international
law, while having no force as such in Australian municipal law,
nevertheless provides an important influence on the development of
Australian common law, particularly in relation to human rights ((48)
Mabo v. Queensland (No.2) [1992] HCA 23; (1992) 175 CLR 1, at p.42.).
35. Wigmore ((49) op cit, pp.310-317.) identifies twelve reasons put
forward in justification of the privilege ((50) See also
the similar
summary by Goldberg J of the policy reasons underlying the application
of the privilege pursuant to the Fifth Amendment in the United States:
Murphy v. Waterfront Commission [1964] USSC 136; (1964) 378 US 52, at p.55.). Of
those reasons, we need only refer to the last two, namely:
"11. The privilege prevents torture and other inhumaneNeither of these two reasons applies to corporations. Wigmore's
treatment of a human being.
...
12. The privilege contributes to a fair state-individual
balance by requiring the government to leave the
individual alone until good cause is shown for
disturbing him and by requiring the government in its
contest with the individual to shoulder the entire
load."
36. Neither the fact that the privilege had its origin in the necessity of
protecting human beings from compulsion to testify
on
pain of excommunication or physical punishment nor the modern
justification of discouraging ill-treatment of individuals and dubious
confessions requires that the privilege be available to corporations.
Although corporations are susceptible to punishment, whether by means
of imposition of fines or sequestration, they cannot suffer physical
punishment. Nor can they testify or be required to testify except
through their officers. Consequently, the historical reasons for the
creation and recognition of the privilege do not support its extension
to corporations. Likewise, the modern and international treatment
of the privilege as a human right which protects personal freedom,
privacy and human dignity is a less than convincing argument for
holding that corporations should enjoy the privilege.
37. In the final analysis, the principal bases for making the privilege
available to corporations - both relied upon by Gleeson
CJ
in the Court of Criminal Appeal ( (51) (1991) 25 NSWLR, at p.127.)
- are that it assists in maintaining the fair state-individual balanceand that it "is a significant element" in "maintaining the integrity of
38. With respect to the first basis, we reject without hesitation the
suggestion that the availability of the privilege to corporations
achieves or would achieve a correct balance between state and
corporation. In general, a corporation is usually in a stronger
position vis-a-vis the state than is an individual; the resources
which companies possess and the advantages which they tend to enjoy,
many stemming from incorporation, are much greater than those
possessed and enjoyed by natural persons. The doctrine of the
corporation as a separate legal entity and the complexity of many
corporate structures and arrangements have made corporate crime and
complex fraud one of the most difficult areas for the state to
regulate effectively. Wigmore states the position succinctly ((54)
op cit, pp.360-361 (emphasis in original). See also Hale v. Henkel
(1906) 201 US at p.74; United States v. White (1944) 322 US, at
p.700 (the relevant passage has been set out earlier in these
reasons).):
"Groups frequently are powerful and their illegal doingsAnd, as Windeyer J noted in Rees v. Kratzmann ((55) [1965] HCA 49; (1965) 114 CLR
frequently are provable only by their records; and ...
economic crimes (as contrasted with common law crimes) are
usually not even discoverable without access to business
records".
"The honest conduct of the affairs of companies is a matter
of great public concern to-day."
39. Accordingly, in maintaining a "fair" or "correct" balance between state
and corporation, the operation of the privilege should
be
confined to natural persons. In this respect, it may seem surprising
that the Court should direct its attention to this issue. The short
answer is that the Court has no alternative but to consider and reach
a conclusion on this issue because the "fair" or "correct" balance
consideration has been put forward as a ground for recognizing that
the privilege is available to corporations.
40. However, it is necessary to look rather more closely at this
justification for applying the privilege to corporations, together
with Gleeson CJ's second justification, the maintenance of the
accusatorial system of justice.
41. In essence, the argument is based on the principle, resoundingly
expressed by Viscount Sankey LC in Woolmington v. Director
of Public
Prosecutions ((56) [1935] UKHL 1; (1935) AC 462, at pp.481-482.):
"that the prosecution must prove the guilt of the prisonerThe fundamental principle of the common law that the onus rests on
is part of the common law ... and no attempt to whittle it
down can be entertained".
42. It had been settled as early as the eighteenth century that the courts
would not make an order requiring an accused person
to produce
documents which would or might tend to incriminate him or her of the
offence charged. In R. v. Cornelius ((58) (1744) 2 Strange 1210 (93
ER 1133).), the Court of King's Bench refused the prosecutor a rule
to inspect the books of the defendants who were charged with the
offence of taking money for granting licences to alehouse-keepers. The
rule was denied on the ground that it was tantamount to requiring "a
defendant indicted for a misdemeanour, to furnish evidence against
himself" ((59) ibid., at p.1211 (at p.1134 of ER). See also R. v.
Worsenham [1792] EngR 1999; (1701) 1 Ld Raym 705 (91 ER 1370), Reg. v. Mead [1790] EngR 460; (1703) 2
Ld Raym 927 (92 ER 119) and R. v. Purnell [1746] EngR 553; (1749) 1 Black W 37,
at p.45 [1746] EngR 553; (96 ER 20, at p.23).).
43. In conformity with that principle, the privilege against
self-incrimination protects an accused person who is required by
process of law to produce documents which tend to implicate that
person in the commission of the offence charged. The privilege
likewise protects a person from producing in other proceedings,
including civil proceedings, documents which might tend to incriminate
that person. In its application to the production of documents, the
operation of the privilege is more far reaching in the protection
which it gives than in its application to oral evidence. It is one
thing to protect a person from testifying to guilt; it is quite
another thing to protect a person from the production of documents
already in existence which constitute evidence of guilt, especially
documents which are in the nature of real evidence. Indeed, the
protection afforded by the privilege is now so far reaching that it
has been described as protection against being compelled to say
anything which "may tend to bring him into the peril and possibility
of being convicted as a criminal" ((60) Lamb v. Munster (1882) 10
QBD 110, per Field J at p.111.) or as protection "against exposure
to conviction for a crime" ((61) Pyneboard Pty. Ltd. v. Trade
Practices Commission (1983) 152 CLR, per Mason ACJ, Wilson and
Dawson JJ at p.336.). That is because the privilege protects a
person from discovering or revealing information which may lead to the
discovery of admissible evidence of guilt not in his or her possession
or power ((62) Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486, at pp.503,
508.).
44. In this respect the protection now conferred by the privilege extends
well beyond the objects originally sought to be achieved
by
way of protecting natural persons from the abuses which necessitated
the introduction of the privilege. True it is that the production of
documents pursuant to process of law, such as a subpoena duces tecum,
involves some testimonial aspects. Thus, by producing the documents
described, the person producing them admits that the documents
existed, were in his or her possession or power and that they are
authentic in the sense that they match the description which they have
been given ((63) Braswell (1988) 487 US, at p.104.). But the
privilege inhibits the production of books which might be used in
evidence and are in the nature of real evidence which speak for
themselves as distinct from testimonial oral evidence which is brought
into existence in response to an exercise of investigative power or in
the course of legal proceedings ((64) Controlled Consultants Pty. Ltd.
(1985) 156 CLR, per Gibbs CJ, Mason and Dawson JJ at p.392;
Corporate Affairs Commission (N.S.W.) v. Yuill (1991) 172 CLR 319,
per Brennan J at p.326.).
Plainly enough the case for protecting a person from compulsion
to make an admission of guilt is much stronger than the case for
protecting a person from compulsion to produce books or documents
which are in the nature of real evidence of guilt and are not
testimonial in character.
45. Accepting that, notwithstanding this difference, the privilege does
protect the individual from being compelled to produce
incriminating books and documents, it does not follow that the
protection is an essential element in the accusatorial system of
justice or that its unavailability in this respect, at least in
relation to corporations, would compromise that system. The
fundamental principle that the onus of proof beyond reasonable doubt
rests on the Crown would remain unimpaired, as would the companion
rule that an accused person cannot be required to testify to the
commission of the offence charged. To speak in this context of a
violation of the "right to silence" serves, in our view, only to
confuse the issue. As Lord Mustill demonstrated in his speech in Reg.
v. Director of Serious Fraud Office; Ex parte Smith ((65) (1993) AC
1, at pp.30-31.), a number of separate and distinct immunities are
generally clustered together under the label the "right to silence",
thereby leading to the misconception that "they are all different ways
of expressing the same principle, whereas in fact they are not". His
Lordship went on to observe that ((66) ibid., at p.31.):
"it is necessary to keep distinct the motives which have
caused them to become embedded in English law; otherwise
objections to the curtailment of one immunity may draw a
spurious reinforcement from association with other, and
different, immunities".
46. Although the privilege has been described as "deep rooted in English
law" ((67) Lam Chi-ming v. The Queen (1991) 2 AC 212,
at
p.222.), the legislatures have from time to time in different fields
abrogated or interfered with the privilege in many of its aspects,
including its application to the production of documents. The
legislatures have taken this course when confronted with the need,
based on perceptions of public interest, to elevate that interest over
the interests of the individual in order to enable the true facts to be
ascertained. The statutory provisions regulating examinations and
inquiries into the affairs of corporations, whether undertaken by
liquidators, inspectors or other investigators, are illustrations which
are germane to the issue arising in the present case. That is because
the necessity for these provisions demonstrates beyond any doubt that
the shield of privilege as applied to corporations is a formidable
obstacle to the ascertainment of the true facts in the realm of
corporate activities.
47. Indeed, the extent to which statute has interfered with the privilege
in relation to corporations indicates that the privilege,
at least in so far as it relates to production of corporate documents,
is not a fundamental aspect of the accusatorial criminal justice
system ((68) Istel Ltd. v. Tully (1993) AC, per Lord Ackner at
p.62.). The extent of abrogation also illustrates the point made
earlier in these reasons that the effect of the privilege is to shield
corporate criminal activity.
48. In this respect, the availability of the privilege to corporations has
a disproportionate and adverse impact in restricting
the documentary evidence which may be produced to the court in a
prosecution of a corporation for a criminal offence. In the case of
corporations, their books and documents constitute the best evidence
of their business transactions and activities. It makes no sense at
all to make the privilege available to a corporation in respect of
these books and documents when officers of the corporation are bound
to testify against the corporation unless they are able to claim
the privilege personally. Oral evidence given by an officer of a
corporation is that of the witness, not that of the corporation ((69)
Smorgon v. Australia and New Zealand Banking Group Ltd. [1976] HCA 53; (1976) 134
CLR 475, per Stephen J at pp.481, 483-485; Penn-Texas Corporation
v. Murat Anstalt (1964) 1 QB 40, at pp.56, 67, 68-69.).
49. Not all the considerations that we have discussed require that the
privilege be completely denied to corporations. Hence,
it can
be argued that the privilege should not apply to the production of
documents or documents of a particular class, such as "required
records", a doctrine to which we shall refer in a moment. But, when
all the considerations are taken into account, they compel the
conclusion that the privilege against self-incrimination in its
entirety is not available to corporations.
50. Although the point was not fully argued in this case, the reasons for
denying the privilege against self-incrimination to
corporations
apply with equal force to the privilege against exposure to a
penalty. The privilege against exposure to a civil penalty is a
different aspect or ground of privilege from the privilege against
self-incrimination ((70) See Pyneboard Pty. Ltd. v. Trade Practices
Commission (1983) 152 CLR, per Mason ACJ, Wilson and Dawson JJ
at pp.336-337.). The former privilege has been treated as
being applicable to corporations in a civil action for penalties ((71)
R. v. Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738, at p.747.).
But that privilege has developed by analogy from the privilege
against self-incrimination so that the reasons given for denying the
availability of the latter privilege to corporations also deny the
availability of the penalty privilege. That said, this is not a case
in which that privilege could have any application, as the proceedings
here are not civil proceedings for a penalty.
51. It has not been suggested that the availability of the privilege to
individuals should be curtailed in any respect, except
in so far
as the appellant submits that the Court should adopt the "required
records" doctrine. That doctrine precludes both corporations and
individuals from invoking the privilege in relation to "records
required by law to be kept in order that there may be suitable
information of transactions which are the appropriate subjects of
governmental regulation and the enforcement of restrictions validly
established" ((72) Shapiro v. United States (1948) 335 US 1, at
p.33; Davis v. United States (1946) 328 US 582, at p.590; Wilson v.
United States (1911) 221 US, at p.380.). We see no occasion to
express an opinion on this question in the circumstances of this case.
In the light of our conclusion that the privilege is not available in
its entirety to corporations, it is unnecessary to pursue the matter
further.
The effect of statutory relaxation of the privilege in relation to
corporations
52. There remains for consideration the question whether the fact that
certain legislative provisions assume that the privilege
is
available to corporations is a reason for holding that it is so
available. Thus, s.1316A of the Corporations Law 1989 abrogates the
privilege in the case of corporations. Other provisions, such as
s.68 of the Australian Securities Commission Act 1989 (Cth) and s.25
of the Pollution Control Act 1970 (N.S.W.), abrogate the privilege but
provide a statutory use-immunity for the person concerned.
53. The circumstance that Parliament (or a drafter) assumed that the
antecedent law differed from the law as the Court finds it
to be is
not a reason for the Court refusing to give effect to its view of the
law ((73) Corporate Affairs Commission (N.S.W.) v. Yuill [1991] HCA 28; (1991) 172
CLR 319; Inland Revenue Commissioners v. Ayrshire Employers Mutual
Insurance Association Ltd. (1946) 1 ALL ER 637; Inland Revenue
Commissioners v. Dowdall, O'Mahoney and Co. Ltd. (1952) AC 401,
at pp.417, 426; West Midland Baptist Association v. Birmingham
Corporation (1970) AC 874, at p.898.). Parliament does not change
the law "simply by betraying a mistaken view of it" ((74) West Midland
Baptist Association (1970) AC, at p.911.). However, it is open to
Parliament to amend a common law rule by implication. Whether a
statute evinces such an intention is a matter of statutory
interpretation. In that respect, "it is one thing to say that the
legislature accepted the law as it thought it to be; it is quite
another thing to speculate upon whether the legislature would have
sought to change the law had it realized" what it was ((75) Corporate
Affairs Commission (N.S.W.) v. Yuill (1991) 172 CLR, per Dawson J
(with whom Toohey J agreed) at p.330; McHugh J at pp.347-348; but cf.
per Brennan J at pp.322-323.). If the legislative provisions were
only workable if the law was as the legislature supposed it to be, that
might serve to indicate that the legislature intended to change the law
((76) West Midland Baptist Association (1970) AC, at p.898.).
54. It has not been submitted that any relevant legislative provision has
impliedly evinced an intention to make the privilege
available
to corporations. Indeed, the general object of such provisions is
to ensure that, in particular circumstances, the privilege is not
available. Nor has it been submitted that any particular provision
is unworkable if the privilege is not available to corporations. If,
on its true construction, a statutory provision proceeds according
to a mistaken view of the law of privilege, that provision can be
interpreted, in conformity with what we have already said, as applying
only to persons entitled at common law to claim the privilege.
The s.29 notice
55. In the Court of Appeal, Gleeson CJ held that the power to obtain
documents conferred by s.29(2)(a) of the Act could not be
exercised solely for the purpose of gathering evidence in current
proceedings. Gleeson CJ concluded, rightly in our view, that
the power was circumscribed by the purpose for which it was given.
His Honour went on to say ((77) Caltex Refining Co. (1991) 25
NSWLR, at p.132.):
"That does not include the purpose of gathering evidenceHis Honour was, of course, interpreting the statutory provision from a
for use in current criminal proceedings or of enabling the
prosecution to circumvent the limitations which the process
of the court places upon the power to compel production of
documents."
56. Once it is accepted, in conformity with the view we take, that by
resort to the court's own process in the form of a notice
to produce
it is possible to compel production of the information sought during
the currency of the proceedings, we see no persuasive reason for
construing s.29(2)(a) restrictively so that it becomes subject to a
limitation which is not applicable to the notice to produce. As the
court's own process can be used to compel production, resort to the
statutory power for the same purpose cannot amount to an abuse of
process. We do not regard the comments of O'Connor J in Huddart
Parker and Co. Pty. Ltd. v. Moorehead ((78) (1909) 8 CLR, at
pp.379-380.) or the decision in Melbourne Steamship Co. Ltd. v.
Moorehead ((79) [1912] HCA 69; (1912) 15 CLR 333.) with respect to s.15B of the
Australian Industries Preservation Act 1907 (Cth), which made provision
for the conduct of an inquiry, as having any application to the
specific power under consideration here where we are not concerned with
the federal separation of powers.
57. There is nothing in the language of s.29(2)(a) which would support the
restrictive interpretation. And, having regard to
the purpose which the provision is designed to serve, the broader
interpretation fits that purpose. It would be artificial to say
that it is permissible to issue a notice requiring production of
documentary material with a view to ascertaining whether a breach of
the statute or a condition of a licence has taken place but it is
impermissible to issue a notice with a view to providing evidence of
such a breach. And, if it be permissible to issue such a notice for
that purpose before the commencement of proceedings, as we think it
is, it must be permissible to do so after proceedings have commenced.
58. The consequence is that questions 2 and 3 should be answered in the
affirmative.
Conclusion
59. Ultimately, it is clear that the rationales for the availability of the
privilege against self-incrimination to natural persons,
both
historical and modern, do not support the extension of the privilege
to artificial legal entities such as corporations. The privilege in
its modern form is in the nature of a human right, designed to protect
individuals from oppressive methods of obtaining evidence of their
guilt for use against them. In respect of natural persons, a fair
state-individual balance requires such protection; however, in respect
of corporations, the privilege is not required to maintain an
appropriate state-individual balance. Nor is the privilege so
fundamental that the denial of its availability to corporations
in relation to the production of documents would undermine the
foundations of our accusatorial system of criminal justice.
Legislative abrogation of the privilege demonstrates this, rather than
demonstrating that the privilege is available to corporations. It
may be that the common law in England extends the privilege to
corporations. But that does not require this Court to follow such an
approach in determining the common law of Australia. Suffice it to
say that, if it ever was the common law in Australia that corporations
could claim the privilege against self-incrimination in relation to
the production of documents, it is no longer the common law.
60. In the result, we would allow the appeal and answer the questions asked
as follows:
Question 1: No.
Question 2: Yes.
Question 3: Yes.
Question 5: No.
Question 6: No.
Question 7: No.
BRENNAN J This case gives rise to two distinct but related
questions. The first is whether the respondent corporation ("Caltex")
is obliged to comply with a notice given under s.29(2)(a) of the Clean
Waters Act 1970 (N.S.W.) requiring Caltex to produce certain documents
in its possession. The second question is whether Caltex is obliged
to comply with a notice to produce the same documents given under Pt 6
of the Rules of the Land and Environment Court of New South Wales in
prosecution proceedings brought in that Court by the State Pollution
Control Commission ("the SPCC"). The SPCC has been abolished but
proceedings taken by it are now taken to be proceedings taken by the
appellant ("the EPA") ((80) See the Protection of the Environment
Administration Act 1991 (N.S.W.), ss.5(1), 41, Sched.4 pars 2(1) and
2(3)(c).). The notices were given by the SPCC for the sole purpose of
obtaining evidence and information for use against Caltex in a
prosecution for pollution offences under the State Pollution Control
Commission Act 1970 (N.S.W.) ((81) now entitled the Pollution Control
Act.) ("the SPCC Act") and the Clean Waters Act. Caltex claims an
immunity or exemption from any obligation to comply with either notice,
invoking the privilege against self-incrimination. A privilege is an
exemption from an obligation to which the party possessing the
privilege would otherwise be subject. The appellant submits that the
privilege against self-incrimination is not available to corporations.
2. The two questions raised in this case are distinct because the first
must be answered by ascertaining the intention of the
legislature, while the second must be answered by reference to the
manner in which a court exercises its powers to compel discovery. The
former question depends on the true construction of the statute which
confers a power to require the production of documents; the latter
question depends on principles defining the extent, and governing
the exercise, of discretionary judicial power. Yet the two questions
are related for the policy of the law favours an immunity from
self-incrimination and that policy affects both the approach taken to
statutory construction and the principles affecting the exercise of
discretionary judicial power.
Construction of s.29(2)(a) of the Clean Waters Act
and the privilege of corporations
3. In a trilogy of cases, Sorby v. The Commonwealth ((82) [1983] HCA 10; (1983) 152 CLR
281.); Pyneboard Pty. Ltd. v. Trade Practices
Commission
((83)
[1983] HCA 9; (1983) 152 CLR 328.); and Controlled Consultants Pty. Ltd. v.
Commissioner for Corporate Affairs ((84) [1985] HCA 6; (1985) 156 CLR 385.), this
Court held (by majority) that the privilege against self-incrimination
is not inherently incapable of applying in non-judicial proceedings
((85) See especially Sorby (1983) 152 CLR, at p.309; Pyneboard (1983)
152 CLR, at p.341.), the issue of its application in any particular
case being decided by construction of the statute creating the
obligation which the privilege is said to qualify ((86) Pyneboard
(1983) 152 CLR, at p.341; Sorby (1983) 152 CLR, at pp.289-290,
309; Controlled Consultants (1985) 156 CLR, at p.396.). In none of
these cases did the majority of the Court find it necessary to decide
whether the privilege is available to a corporation ((87) Pyneboard
(1983) 152 CLR, at p.335; Controlled Consultants (1985) 156 CLR,
at p.394.), though Murphy J was of the opinion that corporations
could not claim the privilege ((88) Pyneboard (1983) 152 CLR, at
pp.346-347; Controlled Consultants (1985) 156 CLR, at p.395.). In
Sorby and Pyneboard, I stated a minority view that the privilege
against self-incrimination could affect obligations which arise
in judicial and quasi-judicial proceedings but could not affect
obligations imposed by a statute in unqualified terms. However, I
deferred to the majority view in Controlled Consultants ((89) (1985)
156 CLR, at p.396; cf. Thomson Newspapers v. Canada (1990) 67 DLR
(4th) 161, at p.291.). If my original view had prevailed, the first
question raised in the present case would not have arisen: the power
to require the production of documents conferred by s.29(2)(a) of the
Clean Waters Act in general terms could not be qualified impliedly by a
privilege against self-incrimination. The power, investigatory in
nature, is vested in an executive agency (namely, a person authorized
by the SPCC ((90) now the Environment Protection Authority.) to
require production of documents ((91) See definition of "authorised
officer" in s.5 of the Clean Waters Act.) ) and is exercised otherwise
than in judicial and quasi-judicial proceedings. The possibility that
Caltex' obligation to comply ((92) s.29(4).) with a notice under
s.29(2)(a) is qualified by a privilege against self-incrimination
arises because a majority of this Court has held that "(t)he rule of
the common law nemo tenetur seipsum accusare is seen as too fundamental
a bulwark of liberty to be categorized simply as a rule of evidence
applicable to judicial and quasi-judicial proceedings": Pyneboard, per
Mason ACJ, Wilson and Dawson JJ ((93) (1983) 152 CLR, at
p.340.). That fundamental bulwark of liberty was seen to be a common
law right, effective to qualify any statutory obligation unless a
contrary legislative intent "clearly emerges". Does that fundamental
bulwark of liberty qualify the general terms of s.29(2)(a) which
reads:
" An authorised officer may, by notice in writing,
require:
(a) the occupier of any premises from which pollutants are
being or are usually discharged into any waters to
produce to that authorised officer any reports, books,
plans, maps or documents relating to the discharge
from the premises of pollutants into the waters or
relating to any manufacturing, industrial or trade
process carried on on those premises".
4. A preliminary point is whether this provision confers power to require
documents to be produced after the time when pollutants
were
being or were usually being discharged into any waters. Although the
description of the "premises" is so expressed that contemporaneity
between the discharge of pollutants and the giving of the notice
requiring production of reports, books, etc. seems to be required,
that construction would not fulfil the manifest purpose of the
provision. The legislature clearly intended that the production of
reports, books, etc. would afford information to an authorized officer
who is investigating the possible discharge of pollutants into any
waters. It would be incongruous to arm, as s.29(1)(b) arms, an
authorized officer with power to enter premises from which "he
reasonably suspects pollutants have been ... discharged" and therein
to make examinations "to ascertain whether the provisions of this Act
... have been complied with", while denying that authorized officer
the power to require production of reports, books, etc. for the
purposes of his examination unless it can be shown that pollutants
are still being discharged at the time when the notice is given. The
better construction of s.29(2)(a) is that, once pollutants "are being
or are usually discharged into any waters", the power to require
production of reports, books, etc. may be exercised but the
requirement must relate to any period in which pollutants were being
or were usually discharged. So construing s.29(2)(a), an obligation
to produce the books and records specified in the notice given by the
authorized officer was prima facie imposed on Caltex, for Caltex had
a licence at the relevant time to discharge limited concentrations of
pollutants into water.
5. Caltex was charged with eleven offences. Some of these offences were
charged as breaches of s.17D(9) of the SPCC Act consisting
in
contraventions of the conditions of the licence held by Caltex under
the SPCC Act authorizing it to pollute waters to the extent permitted
by the conditions of the licence. The remaining offences were charged
as breaches of s.16(1) of the Clean Waters Act consisting in the
pollution of waters. These offences were allegedly committed on 7, 10
and 21 December 1989 and on 13 and 18 January 1990 during the currency
of the licence. In March 1990 the SPCC obtained orders from the Land
and Environment Court calling on Caltex to appear to answer the
offences charged. On 19 April 1991 the SPCC served on Caltex a notice
under s.29(2)(a).
6. The power conferred by s.29(2)(a) to require the production of documents
has a manifest purpose, namely, to enable authorized
officers to check the discharge of pollutants from premises. If a
licence authorizes the discharge of specified quantities or
concentrations of pollutants, the check reveals whether the conditions
of the licence are being or have been breached; if there be no
licence, the check - assuming there are grounds for issuing the notice
- reveals whether pollutants are being or have been discharged from
the premises. In either case, the documents to be produced may
reveal, and are intended to reveal, whether an offence is being or has
been committed. It would frustrate the purpose for which the power
is conferred to excuse an occupier of premises from the obligation
to produce documents when required to do so under s.29(2)(a). The
purpose of s.29(2)(a) answers precisely the object of a statute which,
in Pyneboard ((94) ibid., at p.341.), was said to exclude the
application of the privilege:
"The privilege will be impliedly excluded if the obligation
to answer, provide information or produce documents is
expressed in general terms and it appears from the
character and purpose of the provision that the obligation
was not intended to be subject to any qualification. This
is so when the object of imposing the obligation is to
ensure the full investigation in the public interest of
matters involving the possible commission of offences which
lie peculiarly within the knowledge of persons who cannot
reasonably be expected to make their knowledge available
otherwise than under a statutory obligation. In such cases
it will be so, notwithstanding that the answers given may
be used in subsequent legal proceedings."
7. I construe s.29(2)(a) as not qualified by the privilege against
self-incrimination, whether or not the person to whom the notice
to
produce documents is given is a corporation. For that reason, the
first question could be answered without reference to the availability
of the privilege to corporations but, as that was the chief issue
addressed in argument, I should state my opinion on it.
8. The liability of a corporation to criminal conviction and to the
imposition of a criminal penalty is well established ((95)
See R. v.
Australasian Films Ltd. [1921] HCA 11; (1921) 29 CLR 195; Alford v. Riley Newman
Ltd. (1934) 34 SR (NSW) 261; Mousell Brothers v. London and
North-Western Railway (1917) 2 KB 836; Director of Public Prosecutions
v. Kent and Sussex Contractors Ltd. (1944) KB 146; R. v. ICR
Haulage Ltd. (1944) KB 551.), although the application of criminal
sanctions to corporations is of comparatively recent origin. The
privilege against self-incrimination was developed at an earlier time.
The development was not stimulated by a policy of protecting
corporations from criminal sanctions but by a humanitarian desire to
protect individuals from the excesses of the Courts of Star Chamber and
High Commission. It has been observed ((96) per Lord Denning MR in
British Steel v. Granada Television (1981) AC 1096, at p.1127.)
that a corporation "has no body to be kicked or soul to be damned"
so that a corporation cannot be at risk of corporal punishment or
excommunication yet these were the dread terrors against which the
privilege against self-incrimination was designed to give protection.
9. The particular immunity which the privilege was designed to confer was
an immunity from an obligation to testify as to one's
own
guilt ((97) See the brief history of the privilege which I set out in
Sorby (1983) 152 CLR, at pp.317-319.). That is an immunity that is
irrelevant to a corporation, for a corporation cannot be a witness
((98) Melbourne Steamship Co. Ltd. v. Moorehead [1912] HCA 69; (1912) 15 CLR 333, at
pp.344-345, 347; Rochfort v. Trade Practices Commission [1982] HCA 66; (1982) 153
CLR 134, at p.146; Penn-Texas Corpn. v. Murat Anstalt (1964) 1
QB 40, at pp.53-56. But cf. Penn-Texas Corpn. v. Murat Anstalt (No.2)
(1964) 2 QB 647, at p.662. See also Reg. v. J.G.S.P.; Ex parte
Corning Glass Works Ltd. (1970) 16 DLR (3d) 609, at pp.613-614; Reg.
v. N.M. Paterson and Sons Ltd. (1980) 117 DLR (3d) 517; Reg. v.
Amway Corp. (1989) 56 DLR (4th) 309, at pp.321, 323-324.). A
corporation can be obliged in court proceedings to give discovery and
to produce documents but the obligation to swear or affirm an affidavit
or to produce documents is performed on behalf of the corporation by
an officer or agent: the obligation is not - indeed, cannot be -
performed by the corporation personally ((99) See per Isaacs J in
Melbourne Steamship Co. Ltd. v. Moorehead, ibid., at pp.352-354.).
10. In Canada and the United States, where the privilege against
self-incrimination now has a constitutional basis, the privilege
is
not extended to corporations. In Reg. v. Amway Corp. ((100) (1989) 56
DLR (4th), at p.323; and see Thomson Newspapers v. Canada (1990) 67
DLR (4th), at p.298; Reg. v. CIP Inc. (1992) 71 CCC (3d) 129, at
p.136.) Sopinka J pointed out that the dominant rationale underlying
the rules against self-incrimination is -
"the affront to dignity and privacy inherent in a practiceAnd, in the United States, the same rationale has been accepted. In
which enables the prosecution to force the person charged
to supply the evidence out of his or her own mouth."
" It is consistent with the history of and the policiesIn this Court, Murphy J in Controlled Consultants ((102) (1985) 156
underlying the Self-Incrimination Clause to hold that the
privilege may be asserted only to resist compelled explicit
or implicit disclosures of incriminating information.
Historically, the privilege was intended to prevent the use
of legal compulsion to extract from the accused a sworn
communication of facts which would incriminate him. Such
was the process of the ecclesiastical courts and the Star
Chamber - the inquisitorial method of putting the accused
upon his oath and compelling him to answer questions
designed to uncover uncharged offenses, without evidence
from another source. ... The major thrust of the policies
undergirding the privilege is to prevent such compulsion."
11. A corporation has no hands save those of its officers and agents; it
has no mind save the mind of those who guide its activities.
It
cannot be subjected to the corporal penalties to which a natural
person who offends against the criminal law can be subjected. Yet it
can be held criminally liable. The weight of authority shows that,
with some exceptions ((105) A corporation is incapable of committing
some offences, e.g., perjury or bigamy, at least as a principal
offender: R. v. ICR Haulage Ltd. (1944) KB, at p.554.), a
corporation may be criminally liable where the proscribed act done or
the proscribed omission made by a corporation's officer or agent can be
treated as having been done or made by the corporation with the mental
state possessed by the person or persons who did or authorized the
doing of the act or permitted the making of the omission ((106) On the
general principles, see in particular Lennard's Carrying Company
Limited v. Asiatic Petroleum Company Limited (1915) AC 705, at
pp.713-714; Tesco Supermarkets Ltd. v. Nattrass [1971] UKHL 1; (1972) AC 153, at
p.170; Director of Public Prosecutions v. Kent and Sussex Contractors
Ltd. (1944) KB, at pp.155, 156; R. v. Australasian Films Ltd. (1921)
29 CLR, at p.217.), whether or not the officers or agents of the
corporation are also liable ((107) See Mallan v. Lee [1949] HCA 48; (1949) 80
CLR 198, at pp.211, 215-216; Hamilton v. Whitehead [1988] HCA 65; (1988) 166
CLR 121, at pp.126-127.). There may be an alternative basis of a
corporation's criminal liability, namely, as an aider, abettor,
counsellor or procurer of the offence committed by the human principal
offender ((108) Lewis v. Crafter (1942) SASR 30; Houston v.
Wittner's Pty. Ltd. [1928] HCA 34; (1928) 41 CLR 107, at pp.119-120.). Whatever
basis of liability is applied, criminal liability can be sheeted home
to a corporation only upon proof that what is done or omitted to be
done and the mental state with which the act was done or the omission
was made are within the scope of the authority conferred by the
corporation upon the person or persons on whose act, omission or state
of mind the corporation's criminal liability is said to depend ((109)
See Northside Developments Pty. Ltd. v. Registrar-General [1990] HCA 32; (1990) 170
CLR 146, at p.201.). The prosecution of a corporation thus requires
proof of more than the conduct of particular natural persons which
satisfies the elements of an offence ((110) See Houston v. Wittner's
Pty. Ltd. [1928] HCA 34; (1928) 41 CLR 107.). Proof of those additional issues,
linking the artificial entity with the relevant elements of the
offence, often depends entirely or substantially on proof of documents
in the corporation's possession or power ((111) Wigmore on Evidence
(McNaughton rev. 1961), vol.8, par.2259b, pp.360-361; Ramsay,
"Corporations and the Privilege against Self-Incrimination", (1992) 15
University of New South Wales Law Journal 297, at pp.306-307.).
Moreover, some offences arising from the creation of danger or a
failure to exercise care may be caused by organizational defects
provable only by production of corporate records.
12. If the privilege against self-incrimination were held to qualify a
statutory power compulsorily to obtain access to a corporation's
documents, a legislative intention to control corporate conduct by
creating a liability to criminal sanctions would often be frustrated.
This has been clearly recognized in the United States where the
Supreme Court has denied to corporations the protection of the Fifth
Amendment against self-incrimination, even in judicial proceedings
for the discovery of documents ((112) Hale v. Henkel [1906] USSC 55; (1906) 201 US 43,
esp. at p.74; Wilson v. United States [1911] USSC 98; (1911) 221 US 361; United States
v. White [1944] USSC 109; (1944) 322 US 694; Bellis v. United States (1974) 417 US 85,
at p.90; Braswell v. United States (1988) 487 US 99, at pp.115-116.) .
In United States v. White ((113) (1944) 322 US, at p.700.), Murphy
J delivering the opinion of the Court said:
"The greater portion of evidence of wrongdoing by an
organization or its representatives is usually to be found
in the official records and documents of that organization.
Were the cloak of the privilege to be thrown around these
impersonal records and documents, effective enforcement of
many federal and state laws would be impossible."
13. Against this pragmatic consideration, the weight of English authority
must be placed. In Triplex Safety Glass Co. v. Lancegaye
Safety Glass (1934), Ld. ((114) (1939) 2 KB 395, at p.409: Triplex was
applied by the House of Lords in In re Westinghouse Uranium Contract
(1978) AC 547.), du Parcq LJ delivering the judgment of the Court
of Appeal said:
"It is true that a company cannot suffer all the pains toBut, with respect, the privilege was created to protect against the
which a real person is subject. It can, however, in
certain cases be convicted and punished, with grave
consequences to its reputation and to its members, and we
can see no ground for depriving a juristic person of those
safeguards which the law of England accords even to the
least deserving of natural persons. It would not be in
accordance with principle that any person capable of
committing, and incurring the penalties of, a crime should
be compelled by process of law to admit a criminal
offence."
"first that it discourages the ill-treatment of a suspectAlthough the availability of the privilege to corporations is accepted
and secondly that it discourages the production of dubious
confessions."
14. The rationale of the privilege against self-incrimination has no
application to corporations. In practice, if investigative
powers
were qualified by a privilege against self-incrimination enuring for
the protection of corporations, the liability of corporations to
criminal sanctions would frequently be unenforceable. Thus neither
principle nor practice supports the proposition that corporations
are entitled to claim the privilege against self-incrimination. It
follows that Caltex is bound to comply with the notice under
s.29(2)(a).
15. One further argument against the enforcement of the s.29(2)(a) notice
should be mentioned. When an investigative power to
require
the giving of information is conferred by statute, the power will
ordinarily be construed as exhausted when criminal proceedings to
which the information relates have been commenced and are pending.
That is because the power is understood to be conferred for the
purpose of the performance of the administrative function of
determining whether proceedings should be instituted ((118) Huddart,
Parker and Co. Proprietary Ltd. v. Moorehead; Appleton v. Moorehead
[1909] HCA 36; (1909) 8 CLR 330, at pp.384-385; Melbourne Steamship Co. Ltd. v.
Moorehead (1912) 15 CLR, at pp.341, 343, 346, 347, 350; Trade
Practices Commission v. Pioneer Concrete (1981) 36 ALR 151, per Deane
J at pp.166-167 (Federal Court), approved in Pioneer Concrete (Vic.)
Pty. Ltd. v. Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460, per Mason
J at p.474; Hammond v. The Commonwealth (1982) 152 CLR 188.). The
reason why a restrictive construction is given to a statute creating
such a power is, in my opinion, that a power to compel a person
(whether natural or corporate) to give testimony of facts relating to
an offence with which that person stands charged is wholly
inconsistent with an accused's right of silence at the pending trial.
The statute is read down to protect the right of silence ((119) Hammond
v. The Commonwealth.). But that reason has little cogency if it be
applied to a statutory power ((120) Aliter, if it be applied to the
court's power to order discovery: see fn.(139).) to
require the production of documents which speak for themselves and
which, if the statutory power were exhausted, could be searched
for and seized under a warrant. As s.29(2)(a) relates only to the
production of documents, there is no occasion to import the principle
in cases such as Melbourne Steamship and Hammond which restrict the
exercise of a power to require information so that an accused is under
no obligation to state facts relevant to the issues to be tried.
16. The significance of denying the availability of the privilege against
self-incrimination to a corporation lies in the inability
of
the corporation to resist the exercise of a statutory power from
which a natural person is immune. The implication which is made in
construing a statute conferring an investigative power is that the
exercise of the power will not compel a person to incriminate himself
unless the statute otherwise prescribes expressly or by necessary
intendment. That implication does not protect corporations. Nor is
there any other fundamental bulwark of liberty which qualifies in any
material way a statutory grant of an investigative power. As we shall
see, the privilege against self-exposure to a penalty affords no such
qualification. Accordingly, the power conferred by s.29(2)(a) may be
exercised against corporations according to the unqualified terms of
that provision.
17. A final question relating to the s.29(2)(a) notice should be
considered. Was the use of the notice an abuse of the process
of the
Land and Environment Court? There is no abuse of a court's process in
a party's taking advantage of a legitimate means of obtaining evidence
to be used in pending litigation. If the documents to be produced
pursuant to the notice had been seized under a search warrant, it
could not be suggested that the use of the search warrant was an abuse
of process. Nor can the service of the notice under s.29(2)(a) be so
described.
Discovery qualified by privilege
18. By tracing a path through the Rules of the Land and Environment Court
((121) Pt 6 r.2.) and the Rules of the Supreme Court
((122) Pt
75 r.6(d).), the provisions of Pt 36 rr.13 and 16 of the Rules of the
Supreme Court are found to be applicable to the pending prosecutions of
Caltex. By r.16 a party served with a notice to produce a document in
the possession of that party is required to produce the document
"unless the Court otherwise orders". The SPCC served on Caltex a
notice to produce dated 26 April 1991. Rule 13(1) provides:
" Where the Court, by subpoena or otherwise, orders any
person to produce any document or thing, and any person
makes and substantiates sufficient lawful objection to
production on grounds of privilege, the Court shall not
compel production of that document or thing except
production to the Court for the purpose of ruling on the
objection."
19. When the question is whether a court will exercise its powers to compel
a person to disclose information or to produce documents,
the primary question is not one of statutory construction. It is a
question of the principles upon which a court will lend its coercive
powers to compel a person to furnish evidence that incriminates that
person. The courts have embodied under the rubrics of privilege
the circumstances in which they will refuse to exercise their powers
to order discovery, the production of documents and the giving of
testimony. In the context of judicial proceedings, the claim of
privilege is determined by the court. Caltex, being a corporation,
cannot claim the privilege against self-incrimination. Is there any
like privilege which will lead the court to excuse a corporation from
the obligation imposed by the service of the notice under r.16?
20. There is another privilege, akin to the privilege against
self-incrimination, to which corporations have a better claim, namely,
a privilege against self-exposure to a civil penalty. The burden of a
pecuniary (or other non-corporal) penalty on a corporation is the
same, whether the penalty be classified as criminal or civil. The
privilege against self-exposure to a penalty (hereafter "the penalty
privilege") was developed by analogy with the privilege against
self-incrimination, the rule that "a man is not obliged to accuse
himself" being held to imply "that he is not to discover a disability
in himself": Smith v. Read ((123) (1737) 1 Atk.526, at p.527 [1736] EngR 59; (26
ER 332, at p.332).). As Lord Hardwicke said in Harrison v. Southcote
((124) [1751] EngR 108; (1751) 2 Ves Sen 389, at p.394 [1751] EngR 108; (28 ER 249, at p.252).):
"(the) general rule established with great justice andThe penalty privilege, however, is a different privilege from the
tenderness in the law of England (is) that none shall be
obliged to discover what may tend to subject him to a
penalty, or that which is in nature of a penalty."
"It has been argued that the reason why the Courts will not
assist the plaintiff in an action for a penalty is that it
is a criminal action. But it is not. There is no such
thing as a criminal action. An action for a penalty is a
civil action just as much as an action for a forfeiture.
The rule by which a witness is protected from being called
on to answer questions which may tend to criminate himself
is often referred to in connection with this subject, but
it has really nothing to do with the two rules to which I
have referred. In an action for a penalty there can be no
question of the defendant's being called on to criminate
himself."
21. The penalty privilege owes its existence not to the law's historical
protection of human dignity but to the limitation which
the
courts placed on the exercise of their powers to compel a defendant in
an action for the recovery of a penalty to furnish against himself the
evidence needed to establish his liability ((127) Monnins v. Dom'
Monnins (1673) 2 Chan.Rep.68 [1672] EngR 1; (21 ER 618); Bird v. Hardwicke (1682) 1
Vern.109 [1680] EngR 36; (23 ER 349); Holdsworth, A History of English Law, 3rd ed.
(1945), vol.5, pp.280-283.). Thus in Martin v. Treacher ((128) (1886)
16 QBD 507.), Lord Esher MR noted ((129) ibid., at pp.511-512; see
also at p.514 per Lopes J):
"The reasons given seem substantially to amount to this:Thus the court refuses to lend its process to compel discovery on the
although the penalty is not in strict law a criminal
penalty, yet the action is in the nature of a criminal
charge against the defendant ... and, the object of the
action being to subject the defendant to a penalty in the
nature of a criminal penalty, it would be monstrous that
the plaintiff should be allowed to bring such an action on
speculation, and then, admitting that he had not evidence
to support it, to ask the defendant to supply such evidence
out of his own mouth and so to criminate himself. It is on
this principle, as it seems to me, that a court of equity
would not grant its aid to such an action."
22. In refusing to lend its process to compel discovery in actions to
recover a civil penalty, the court has made no distinction
between
corporations and natural persons. The policy which denies discovery
in actions for a penalty is concerned more with the purpose for which
discovery is sought than with the privilege of individual litigants.
Moreover, until the present case, the significance of the distinction
between the privilege against self-incrimination and the penalty
privilege has not been considered. But once it is seen that the
privilege against self-incrimination can be claimed only by natural
persons, the distinction between exposure to a civil penalty and
exposure to a criminal penalty cannot be regarded as a relevant
distinction for the purpose of determining whether discovery should be
ordered. So long as it was thought that corporations, no less than
natural persons, could claim a privilege against self-incrimination,
the distinction did not matter. But it would surely be incongruous
for a court to allow discovery against a corporation in proceedings
for the conviction of the corporation while refusing discovery in
proceedings for a civil penalty. It would be no less incongruous
to allow discovery against a corporation in proceedings for a civil
penalty and deny discovery against a natural person in similar, or
even the same, proceedings.
23. As penalties may be imposed on a corporation either in criminal or in
civil proceedings and as the policy of the law leads
the court to
refuse to exercise its powers to compel discovery designed to procure
evidence of liability to penalties, I would hold corporations exempt
from an obligation to give discovery in any proceedings brought to
enforce a liability to a penalty, whether criminal or civil, unless a
statute or rule of court otherwise provides expressly or by necessary
intendment.
24. Apart from proceedings brought for the purpose of discovering evidence
that the opposing party is liable to conviction or
a penalty,
the privilege against self-incrimination or the penalty privilege
may limit the exercise of other curial powers to obtain evidence.
Privilege may be claimed by a party who is required to give discovery
in proceedings brought for another purpose, or by a person who has
been served with a subpoena ad testificandum, a subpoena duces tecum
or an order in the nature of a subpoena. The policy which denies
discovery in proceedings of the kind mentioned limits the exercise
of the court's powers to obtain evidence by discovery (whether by
interrogatories or the discovery and production of documents) ((135)
Spokes v. Grosvenor Hotel Co. (1897) 2 QB 124.), subpoena ((136) The
Commissioner for Railways v. Small (1938) 38 SR (NSW) 564, at
p.574; Reg. v. Garbett (1847) 1 Den.236, at pp.257-258 (169 ER 227, at
p.235).) or order in the nature of subpoena. However, in these cases,
the party or person claiming exemption on the ground of privilege is
left to take the objection when called upon to perform the obligation
to testify, to produce documents or to give information as the case may
be ((137) Spokes v. Grosvenor Hotel Co.; National Association of
Operative Plasterers v. Smithies (1906) AC, at p.438; Castlemaine
Perkins Limited v. Queen Street Hotels Pty. Ltd. (No.2) (1969)
Qd R 397, at p.400; Refrigerated Express Lines (A/asia) Pty.
Ltd. v. Australian Meat and Livestock Corp. (1979) 2 ATPR
40-137; 42 FLR 204.).
25. In the present case, Pt 36 r.16 of the Supreme Court Rules, picked up
by the Land and Environment Court Rules, authorized
the giving of
a notice to produce but the service of the notice to produce gave the
SPCC no right to production of documents greater than it could obtain
by applying for an order for discovery ((138) See The Commissioner for
Railways v. Small (1938) 38 SR (NSW), at pp.574-575.). The courts
have traditionally refused to compel an accused person to furnish
evidence against himself, either testimonially or by the production of
documents ((139) R. v. Cornelius (1743) 2 Strange 1210, at p.1211 (93
ER 1133, at p.1134); R. v. Worsenham [1792] EngR 1999; (1701) 1 Ld. Raym.705 (91
ER 1370); Reg. v. Mead [1790] EngR 460; (1703) 2 Ld Raym 927 (92 ER 119); R. v.
Purnell [1746] EngR 553; (1748) 1 Black W37, at p.45 [1746] EngR 553; (96 ER 20, at p.23).). No order
for discovery would be made against Caltex in proceedings for the
conviction of Caltex and no obligation to produce documents is
enforceable pursuant to the notice to produce.
26. Although I must accept that the privilege against self-incrimination
can be applied outside judicial and quasi-judicial
proceedings as a fundamental bulwark of liberty for the individual,
there is no reason why the penalty privilege should be applied outside
the area in which its rationale - the limitation placed by the court
on the exercise of its powers to obtain evidence - warrants its
application. This proposition is, of course, inconsistent with the
majority view in Pyneboard that an obligation created by the exercise
of a statutory power to require a person to furnish information could
be qualified by the penalty privilege. However, as the availability
of the penalty privilege was supported in that case by the rationale
supporting the privilege against self-incrimination (namely, the
general availability of the privilege is "a bulwark of liberty" ((140)
(1983) 152 CLR, at pp.340-341.)), a corporation's claim for
exemption from a statutory obligation on the ground of penalty
privilege must fail once it is held that a corporation cannot claim the
benefit of the privilege against self-incrimination. In Pyneboard,
therefore, the obligation imposed on the corporation under s.155 of the
Trade Practices Act 1974 (Cth) could not have been qualified by the
penalty privilege.
27. I would therefore allow the appeal and answer the questions in the case
stated as follows:
Q.1. Whether an incorporated company is entitled to a privilege
commonly known as the privilege against self-incrimination.
A.1 No.
Q.2. Whether there is power under s.29(2)(a) of the Clean Waters
Act enabling the (appellant) to issue and serve a notice in
connection with or for the purpose of obtaining material for
use in a prosecution which at the time of the issue of that
notice is pending before the Land and Environment Court.
A.2. Yes, in the case of a defendant which is a corporation.
Q.3. Whether the notice issued pursuant to s.29(2)(a) of (the
Act) and served on (Caltex) on 18 April 1991 is a lawful
exercise of power.
A.3. Yes.
Q.4. Whether the issue of the notice pursuant to s.29(2)(a) of
(the Act) and served on (Caltex) on 18 April 1991 in
circumstances where charges had already been laid pursuant
to (the Act) and the matter set down for trial constituted
a contempt of the Court by the (appellant) or authorized
officer.
A.4. No.
Q.5. Whether the service by the (appellant) of a Notice to
Produce on (Caltex) on 26 April 1991 to produce the same
documents referred to in the notice under s.29(2)(a) of (the
Act) should be set aside as an abuse of the process of the
court.
A.5. Service of the Notice to Produce should be set aside.
Q.6. Whether the privilege against self-incrimination extends to
(Caltex) in respect of the said notice issued pursuant to
s.29(2)(a) of (the Act).
A.6. No.
Q.7. Whether the privilege against self-incrimination extends to
(Caltex) in respect of the said Notice to Produce.
A.7. No, but the privilege against self-exposure to a penalty
extends to Caltex.
Q.8. Whether a notice under s.29(2)(a) of (the Act) can be given
in terms of the notice the subject of this Stated Case in
respect of past alleged discharges.
A.8. Yes.
Q.9. Whether the notice in the form referred to in Q.8 above was
otherwise within the power contained in the said s.29(2)(a).
A.9. Yes.
DEANE, DAWSON AND GAUDRON JJ Under s.17A of the State Pollution
Control Commission Act 1970 (N.S.W.) a person could apply to the State
Pollution Control Commission ("the Commission") (whose powers have
now been transferred to the Environment Protection Authority) for a
licence to pollute waters. Under s.17D(1) of that Act the Commission
was able to grant a licence subject to conditions. Various licences
were issued to the respondent subject to conditions.
2. Section 16(1) of the Clean Waters Act 1970 (N.S.W.) made it an offence
to pollute any waters. By sub-s.(6) of that section,
the
pollution of waters by a person was not an offence if the person held
a licence and did not pollute the waters in contravention of any of
the conditions of the licence. Under s.17D(9) of the State Pollution
Control Commission Act a person who held a licence and contravened any
condition of that licence was guilty of an offence under that Act.
Both s.16 of the Clean Waters Act and s.17D of the State Pollution
Control Commission Act provided substantial monetary penalties for
offences against their provisions.
3. The Commission commenced a prosecution against the respondent in the
Land and Environment Court for offences alleged to have
been
committed by the respondent under both s.16 and s.17D involving the
discharge of pollutants into the Pacific Ocean in December 1989
and January 1990. The Land and Environment Court has a criminal
jurisdiction which enables it to hear such matters summarily.
4. The relevant licence allowed the respondent to discharge wastes into the
ocean up to a maximum volume, provided they did not
contain
more than a specified proportion of certain substances. The
conditions imposed by the licence required the respondent to monitor
the discharge of wastes. Additional Condition 5 provided:
"The results of the monitoring required ... shall beAdditional Condition 6 provided that if effluent were discharged
presented graphically and summarised in a statistical form,
and shall be furnished to the Commission with the
application for renewal of the licence."
5. Under s.29(2)(a) of the Clean Waters Act:
"An authorised officer may, by notice in writing,
require:
(a) the occupier of any premises from which pollutants
are being or are usually discharged into any waters
to produce to that authorised officer any reports,
books, plans, maps or documents relating to the
discharge from the premises of pollutants into the
waters or relating to any manufacturing, industrial
or trade process carried on on those premises".
6. A year after the prosecution had been commenced and just two weeks
before the matters were due to be heard, the Commission
served upon
the respondent a notice under s.29(2)(a) of the Clean Waters Act dated
18 April 1991 requiring the respondent to produce to an authorized
officer of the Commission certain documents, namely:
"All (including copies):The specified dates covered the period during which the discharges
laboratory registers of all samples
working notebooks for the testing of
samples for phenol, grease and oil
field operators notebooks
laboratory reports
results sheets and/or any other
document in respect of or arising
out of oily water effluent sampling,
monitoring and analysis of same on
7, 10 and 21 December 1989 and
13 and 18 January 1990."
7. In addition, the Commission served on the respondent a notice to produce
to the Land and Environment Court the same documents
as were
referred to in the notice under s.29(2)(a). That notice was issued
pursuant to the rules of that Court. The Commission conceded that
both notices were given for the purposes of the criminal proceedings
against the respondent.
8. The rules of the Land and Environment Court ((141) Land and Environment
Court Rules 1980 (N.S.W.), Pt 6, r.2.) incorporate
the
rules of the Supreme Court of New South Wales relating to summary
prosecution ((142) Supreme Court Rules 1970 (N.S.W.), Pt 75, Div.2.).
Those rules in turn ((143) ibid., Pt 75, r.6(d).) incorporate the
rules relating to notices to produce ((144) ibid., Pt 36, rr.13 and
16.). Part 36, r.16(1) of the Supreme Court Rules provides: "Where a
party to any proceedings serves on another party notice requiring the
party served to produce ... any document ... and the document ... is in
the possession ... of the party served, the party served shall, unless
the Court otherwise orders, produce the document ... without the need
for any subpoena for production". Thus a notice to produce may serve
as a subpoena duces tecum, although one ground upon which a court would
relieve a party from producing a document would be that it is protected
by privilege ((145) See ibid., Pt 36, r.13.).
9. The respondent applied to the Land and Environment Court for a ruling
that it was not obliged to comply with either the notice
under s.29(2)(a) or the notice to produce. That application was
unsuccessful and Stein J held that the respondent was bound, by
either or both of the notices, to produce the documents sought.
Subsequently, pursuant to s.5A(1A) of the Criminal Appeal Act 1912
(N.S.W.), Stein J submitted a series of questions to the Court of
Criminal Appeal. Those questions raised the issue of whether the
respondent, as a corporation, could claim the benefit of the privilege
against self-incrimination. The Court of Criminal Appeal held that it
could ((146) (1991) 25 NSWLR 118.) and it is against that
decision that the appellant appeals to this Court. The Court of
Criminal Appeal also held that there was no power under s.29(2)(a) of
the Clean Waters Act enabling the Commission to issue and serve a
notice for the purpose of obtaining material for use in a pending
prosecution. The appellant also appeals against that decision.
10. In Pyneboard Pty. Ltd. v. Trade Practices Commission ((147) [1983] HCA 9; (1983) 152
CLR 328, at p.335.) Mason ACJ, Wilson
and Dawson JJ
observed
that it is not easy to assert confidently that the privilege against
self-incrimination serves one particular policy or purpose. It is
generally recognized that it emerged as a reaction against procedures
of the courts of Star Chamber and High Commission, and in particular
their use of the ex officio, or inquisitorial, oath. This was
compulsorily administered so that a person might be examined and
himself provide the accusation to be made against him. The principle
is said to be expressed in the maxim nemo tenetur seipsum prodere (or
accusare) - no one is bound to betray (or accuse) himself. The courts
of Star Chamber and High Commission were abolished in the seventeenth
century and the ex officio oath to answer criminal charges went with
them, but the Latin maxim (which is in fact part of a wider proposition
with a somewhat different meaning ((148) See Wigmore on Evidence,
(McNaughton rev. 1961) vol.8, pp.268- 269.) ) came to be reflected in a
variety of ways both at common law and in equity. The abolition of the
Star Chamber and High Commission marked not only the end of the ex
officio oath, but the rejection of inquisitorial procedures. The
so-called "right to silence" is often invoked in an attempt to express
compendiously this rejection, although in truth there is not just one
right but a number of rights, or immunities, of differing scope ((149)
See Reg. v. Director of Serious Fraud Office; Ex parte Smith (1993)
AC 1, per Lord Mustill at pp.30-31.). There is, of course, the
general right, which everyone has, not to answer questions, whether or
not the answers might incriminate him. The law, generally speaking,
does not oblige persons to answer questions if they do not wish to do
so. But that right, or immunity, is not absolute. There are
exceptions, and perhaps the most important is that witnesses may not
refuse to answer questions put to them in a court save where they are
excused from doing so. The privilege against self-incrimination
provides such an excuse, and extends beyond a court of law to other
forms of compulsory examination ((150) See Pyneboard Pty. Ltd. v. Trade
Practices Commission (1983) 152 CLR, at p.341; Sorby v. The
Commonwealth (1983) 152 CLR 281, at p.309.).
11. However, other inter-related rights or immunities have emerged which
have become woven into the law, particularly the criminal
law,
both by way of procedure and in substance. For example, the fact that
persons suspected of having committed a crime are immune from having
to answer, under compulsion, the questions of police officers or
others in authority, has led to the development of rules which render
inadmissible in evidence confessions which are involuntary or unfairly
obtained. And an accused person (who is a competent witness only as a
matter of fairly recent history) has the right to refrain from giving
evidence and to avoid answering incriminating questions.
12. The latter right is by no means wholly explained by reference to the
maxim nemo tenetur seipsum prodere. Rather it is to
be explained
by the principle, fundamental in our criminal law, that the onus of
proving a criminal offence lies upon the prosecution and that in
discharging that onus it cannot compel the accused to assist it in any
way. Thus, whilst the basic adversarial procedure of the criminal law
may have roots in the seventeenth century, it has grown in a way that
is not explained solely by reference to a specific immunity such as
the privilege against self-incrimination. Rather it must be explained
by reference to broader considerations which may in turn explain the
privilege. As Gibbs CJ said in Sorby v. The Commonwealth ((151)
(1983) 152 CLR, at p.294.):
"It is a cardinal principle of our system of justice that
the Crown must prove the guilt of an accused person, and the
protection which that principle affords to the liberty of
the individual will be weakened if power exists to compel a
suspected person to confess his guilt."
13. So far as documents are concerned, it may be thought that the maxim
nemo tenetur seipsum prodere has a limited application,
for
documents are more in the nature of real evidence and speak for
themselves in contrast to evidence of a testimonial kind. It is said,
particularly in the United States, that there is a testimonial element
in the production of documents because the person producing them
identifies the documents produced as those being sought ((152) Braswell
v. United States (1988) 487 US 99, at pp.111-118.). There is a
certain technicality about that explanation. In reality, the privilege
protects a person from being compelled to produce evidence which will
incriminate him, whether testimonial or not. That is clear enough in a
criminal trial where an accused cannot be compelled by the prosecution
to produce documents. But the immunity enjoyed by an accused in a
criminal trial extends to evidence of any kind, whether incriminating
or not. The immunity is, perhaps, better explained by the principle
that the prosecution bears the onus of proving its case, than by the
more confined principle that an accused has a privilege against
self-incrimination, notwithstanding that both have a common origin.
14. The privilege against self-incrimination was extended to the production
of documents apparently as the result of Chancery
influence. Discovery was an equitable remedy and the Court of
Chancery would not order the production of documents if to do so would
have exposed the party against whom discovery was sought to a penalty
or forfeiture ((153) See, e.g., Monnins v. Dom' Monnins (1673) 2
Chan Rep 68 [1672] EngR 1; (21 ER 618); Bird v. Hardwicke [1680] EngR 36; (1682) 1 Vern 109 (23
ER 349).). The Court came to recognize self-incrimination
as affording a similar protection. The same policy extended to the
subpoena duces tecum, which was originally a Chancery writ ((154) For
the use of Chancery remedies in aid of common law actions, see
Holdsworth, A History of English Law, vol.5, 3rd ed. (1945),
pp.280-283.). When the common law courts were given the power to use
the subpoena, they used it consistently with Chancery practice ((155)
Tollefson, The Privilege Against Self-Incrimination in England and
Canada, (1975), (unpublished thesis, University of Oxford), p.45.).
The general aversion in seventeenth century England to inquisitorial
procedures meant that no distinction was drawn between documents and
testimonial evidence ((156) Reg. v. Mead (1703) 2 Ld Raym 927 (92 ER
119).).
15. But, as we have said, the immunity of an accused person from being
compelled to produce documents in criminal proceedings
now appears to
rest more upon the principle that the prosecution bears the burden of
proof than upon the privilege against self-incrimination, even though
the burden of proof has its beginnings in the same aversion to
inquisitorial proceedings which gave birth to the maxim nemo tenetur
seipsum prodere.
16. The liability of a corporation to provide self-incriminating evidence
in civil proceedings was first considered in England
in
Triplex Safety Glass Co. v. Lancegaye Safety Glass (1934) Ltd. ((157)
(1939) 2 KB 395.). In that case the defendant company was sued for
damages for slander and libel. The plaintiff delivered interrogatories
which the defendant, through its secretary, refused to answer on the
basis that the answers would tend to incriminate it. The Court of
Appeal upheld the objection upon the basis that the answers might
provide the ground for a prosecution for criminal libel. It was
contended that a company, as distinct from a natural person, was not
entitled to claim the privilege against self-incrimination. That was
dealt with in a well-known passage in the judgment of the Court ((158)
ibid., at p.409.):
"It is true that a company cannot suffer all the pains toThe availability of the privilege to corporations has subsequently
which a real person is subject. It can, however, in certain
cases be convicted and punished, with grave consequences to
its reputation and to its members, and we can see no ground
for depriving a juristic person of those safeguards which
the law of England accords even to the least deserving of
natural persons. It would not be in accordance with
principle that any person capable of committing, and
incurring the penalties of, a crime should be compelled by
process of law to admit a criminal offence."
17. In the United States the privilege against self-incrimination has been
denied to corporations, indeed to all collective entities.
This would seem at least partly due to the fact that the privilege
("No person ... shall be compelled in any criminal case to be a
witness against himself") has constitutional force through the Fifth
Amendment, extended to the States by the Fourteenth Amendment. The
impossibility of modifying the privilege by statute appears to have
contributed to a restrictive interpretation of the protection. As the
majority in Braswell v. United States said ((161) (1988) 487 US, at
p.115, quoting United States v. White [1944] USSC 109; (1944) 322 US 694, at p.700.)
:
"We note further that recognizing a Fifth Amendment
privilege on behalf of the records custodians of collective
entities would have a detrimental impact on the Government's
efforts to prosecute 'white-collar crime,' one of the most
serious problems confronting law enforcement authorities.
'The greater portion of evidence of wrongdoing by an
organization or its representatives is usually found in the
official records and documents of that organization. Were
the cloak of the privilege to be thrown around these
impersonal records and documents, effective enforcement of
many federal and state laws would be impossible.'"
18. Of course, other justifications, not always the same, have been given
for denying the privilege to corporations under the
United
States Constitution. In Hale v. Henkel ((162) [1906] USSC 55; (1906) 201 US 43.)
the Supreme Court, whilst acknowledging the general principle that no
person can be compelled to give evidence which may expose that person
to prosecution for crime, held that a corporation is a creature of the
State, presumed to be incorporated for the benefit of the public, and
that, being vested with special privileges and protection, it cannot
"refuse to show its hand when charged with an abuse of such privileges"
((163) ibid., at p.75.). Due to the State's power of "visitation", a
corporation's documents are not private documents and hence are not
protected by the Fifth Amendment. Nor is the protection available to an
officer of a corporation called upon to produce a corporation's
documents, even if the documents incriminate the officer personally.
The documents are the corporation's documents, and not the officer's
private papers, and the officer is bound to produce them ((164) Wilson
v. United States [1911] USSC 98; (1911) 221 US 361; Dreier v. United States (1911)
221 US 394.).
19. The denial of the privilege was extended beyond corporations to
"collective entities" in United States v. White ((165) [1944] USSC 109; (1944)
322 US
694.) and the expressed basis for the denial shifted. In that case
the collective entity was an unincorporated trade union and the court
said that its representatives held its documents in a representative
rather than in a personal capacity. As a result, they could not claim
a personal privilege against self-incrimination even though production
of the documents might have tended to incriminate them personally.
The Supreme Court later observed in Braswell ((166) (1988) 487 US, at
p.108.) that "(i)n applying the collective entity rule to
unincorporated associations such as unions, the Court jettisoned
reliance on the visitatorial powers of the State over corporations
owing their existence to the State". Subsequently, the collective
entity rule has been extended to partnerships ((167) Bellis v. United
States (1974) 417 US 85.). The production of the records of a
collective entity by their custodian is deemed not to constitute
testimonial self-incrimination even when the records might incriminate
the custodian ((168) Fisher v. United States [1976] USSC 65; (1976) 425 US 391.).
That is, apparently, because in assuming the position of custodian, a
person undertakes the obligation to produce the records in response
to a proper demand and that undertaking prevents the question of
self-incrimination from arising ((169) See Curcio v. United States
(1957) 354 US 118, at pp.123-125.). Nevertheless, some testimonial
significance is attached to the act of production because it has been
decided that, in any criminal prosecution of the custodian, no
evidentiary use may be made of the custodian's "individual act" in
producing the documents other than as establishing that the documents
are "authentic corporate records" ((170) See Braswell v. United States
(1988) 487 US, at p.118.).
20. Murphy J is the only member of this Court to have expressed a concluded
view about the availability of the privilege against
self-incrimination to corporations. In Pyneboard Pty. Ltd. v. Trade
Practices Commission ((171) (1983) 152 CLR, at p.346.), he denied
that it extended to corporations or political entities, saying that:
"(t)he history and reasons for the privilege do not justify its
extension to artificial persons such as corporations or political
entities". And in Rochfort v. Trade Practices Commission he stated his
view ((172) [1982] HCA 66; (1982) 153 CLR 134, at p.150.):
"A person required to produce documents cannot resistThe remainder of the Court were content to reserve the question of
production on the ground that this would tend to incriminate
another person. The privilege against self-incrimination
is a human right, based on the desire to protect personal
freedom and human dignity. The history of, and reasons for,
the privilege suggest that it should not be extended to
artificial persons such as corporations or to large or
amorphous voluntary organizations."
21. Although the privilege against self-incrimination may reflect a desire
to protect personal freedom and may be classified as
a human
right ((174) cf. International Covenant on Civil and Political Rights,
Art.14(3)(g).), it operates within a broader context. It represents,
at all events so far as the criminal law is concerned, an unequivocal
rejection of an inquisitorial approach. We would doubt that Murphy J
in denying the privilege to corporations contemplated any change in
the onus imposed upon the prosecution to prove a criminal offence
against an accused corporation. But to remove the privilege in civil
or extra-judicial proceedings without prohibiting the subsequent use
of the incriminating evidence inevitably raises the question whether
that onus survives unimpaired. If a corporation were bound to produce
incriminating evidence against itself in other proceedings, why should
it not be bound to produce evidence against itself at its own trial?
There is really little difference in principle between being compelled
to incriminate oneself in other proceedings so that the evidence is
available at one's trial and being compelled to incriminate oneself
during the actual trial.
22. In any case, personal freedom and human dignity have less significance
when evidence is given under compulsion in judicial
proceedings. Questions asked extra-judicially by those investigating
crime, such as the police, may well be invasive of privacy, but no one
is compelled to answer. There the right to refuse to answer is a
right of a more general kind than that conferred by the privilege
against self-incrimination. On the other hand, evidence given in
judicial proceedings is given under compulsion and is frequently an
invasion of privacy. But it is not any more or less so because
the evidence is self-incriminating. For this reason, if no other,
the privilege against self-incrimination cannot be said to rest
exclusively upon notions of personal freedom and human dignity.
23. The privilege against self-incrimination confers an immunity which is
deeply embedded in the law ((175) See Haw Tua Tau v.
Public
Prosecutor (1982) AC 136, at p.154; Hor, "The privilege against
self-incrimination and fairness to the accused", (1993) Singapore
Journal of Legal Studies 35, at pp.35-38, 55-56.). In the end, it is
based upon the deep-seated belief that those who allege the commission
of a crime should prove it themselves and should not be able to compel
the accused to provide proof against himself. To make an exception in
the case of a corporation may trouble the conscience less because a
corporation "has no body to be kicked or soul to be damned" ((176)
British Steel v. Granada Television (1981) AC, per Lord Denning MR
at p.1127.). But that is hardly a sufficient justification for the
exception having regard to the underlying principle and the purpose
which it serves, both of which apply to corporations. If there are to
be exceptions they are better made by the legislature which is capable
of confining them to the requirements of the particular situation. We
shall turn to that in a moment.
24. We would pause to observe at this point that the privilege against
self-incrimination (both itself and as part of the wider
right to
silence) has over the years been vigorously criticized as an
unnecessary impediment to the detection and conviction of criminal
offenders and as an obstacle to the judicial ascertainment of the
truth ((177) See, e.g., Bentham, Introductory View of the Rationale of
Evidence, (1827), in Bowring ed., The Works of Jeremy Bentham,
(1843), vol.6, pp.106-109.). More recently in Istel Ltd. v. Tully
Lord Templeman said ((178) (1993) AC 45, at p.53.):
"It is difficult to see any reason why in civil proceedingsIn that case an order was made against two defendants to produce
the privilege against self-incrimination should be
exercisable so as to enable a litigant to refuse relevant
and even vital documents which are in his possession or
power and which speak for themselves. ... I regard the
privilege against self-incrimination exercisable in civil
proceedings as an archaic and unjustifiable survival from
the past when the court directs the production of relevant
documents and requires the defendant to specify his dealings
with the plaintiff's property or money."
25. As we have said, the privilege may be abrogated or modified by statute.
And in the case of corporations some may think that
justifiable because the privilege is purely a human right. But in
reality, the prevailing reasons are likely to be more pragmatic as,
it would seem, are the reasons for giving to the Fifth Amendment in
the United States a scope which excludes corporations. The complex
corporate structure which the corporate investigator nowadays so often
faces makes detecting and prosecuting corporate crime increasingly
difficult, and sometimes well-nigh impossible, without access to more
effective procedures than the traditional methods such as search and
seizure. Nevertheless, a statutory intention to modify or abrogate a
common law right, such as the privilege against self-incrimination,
must emerge clearly, whether by express words or necessary
implication. When it does the courts must give it effect. There is
no constitutional constraint as in the United States. But, as with
the legislation which the Court considered in Pyneboard Pty. Ltd. v.
Trade Practices Commission and Controlled Consultants Pty. Ltd. v.
Commissioner for Corporate Affairs, the legislature may, whilst
compelling the production of incriminating material, provide
protection against its use in the prosecution of the person producing
it, whether a natural person or a corporation. Questions arise as to
the extent of the protection necessary - whether it should prevent
only direct use or whether it should extend to derivative use - but
that is something which is properly a matter for the legislature to
consider.
26. The fact that in certain instances the legislature has exercised its
power to modify the privilege, whilst at the same time
preserving
a measure of protection, is a not unimportant consideration in any
argument concerning the extension of the privilege to corporations
at common law, because the legislative assumption has been that
the privilege does extend to corporations. The force of that
consideration is not diminished by the far-reaching denial of the
privilege to corporations under current legislation. Under the
Corporations Law, which applies throughout Australia, the privilege
against self-incrimination is not available to a body corporate in
criminal proceedings arising under that Law, whether or not the
corporation is a defendant ((180) s.1316A.). And at a compulsory
examination under the Law a person (including a body corporate) is not
excused from answering a question on the ground that it may tend to
incriminate that person, although certain protections against the use
of the evidence in criminal proceedings are available to persons
other than a body corporate ((181) s.597(12), (12A).). In
investigations under the Australian Securities Commission Act 1989
(Cth), the privilege against self-incrimination is not available,
although certain protections are available to persons other than a body
corporate ((182) s.68.).
27. If, as it seems to us, the desire to deny the privilege against
self-incrimination, whether to natural persons or corporations
or
both, tends to be dictated by pragmatism rather than principle, then
the extent of any denial is more appropriately a matter for the
legislature than the courts. We can find no sufficient reason in
principle for saying that the doctrine, as it has developed in our
law, has no application to corporations. Thus in the present case,
which is a criminal prosecution against the respondent, there is no
reason why the respondent may not successfully invoke the privilege
against the notice to produce documents given pursuant to the rules of
the court. Whether the refusal to produce the documents should be
upheld on that basis or upon the broader basis that the prosecution
cannot compel a defendant in criminal proceedings to assist it in the
proof of its case is a matter which it is unnecessary to determine.
28. Having expressed the view which we have, we should add that the scope
of the privilege against self-incrimination in its application
to corporations is, because of the very nature of a corporation,
somewhat limited. A corporation cannot be a witness. In
circumstances where evidence may be required of a corporation
otherwise than as a witness, for example, by the production of
documents, it may through its proper officer or its counsel object to
providing the evidence ((183) Rochfort v. Trade Practices Commission
(1982) 153 CLR, at p.146.). But the privilege offers no
protection against the use of a corporation's documents. Even in
criminal proceedings, a notice to produce may be served upon an
accused corporation, not as a means of compelling it to produce the
documents sought, but to lay the foundation for the proof of their
contents by secondary evidence ((184) Morgan v. Babcock and Wilcox Ltd.
[1929] HCA 25; (1929) 43 CLR 163.). And the prosecution's powers of search and
seizure are an important resource for discharging the onus which the
prosecution bears. As Holmes J observed in Johnson v. United States
((185) [1913] USSC 136; (1913) 228 US 457, at p.458.): "A party is privileged from
producing the evidence but not from its production."
29. Moreover, a corporation's privilege is no ground for resisting
production of the corporation's documents by another person.
As was
observed in Controlled Consultants Pty. Ltd. v. Commissioner for
Corporate Affairs ((186) [1985] HCA 6; (1985) 156 CLR 385, at p.393.): "The
privilege is not a privilege against incrimination; it is a privilege
against self-incrimination". An officer or an employee of a
corporation cannot resist production of documents in his possession,
custody or control because their production might incriminate the
corporation. The corporation may remove the possession, custody or
control of the documents from the officer or employee, but that is a
different matter. Although a corporation cannot be a witness in
proceedings, when an officer or employee is called, even in criminal
proceedings against the corporation, the officer or employee may not
refuse to answer upon the basis that the answer would tend to
incriminate the corporation. Thus the debate about whether a
corporation may claim privilege against self-incrimination centres on
the relatively confined area of the production of documents or the
answering of interrogatories because these are things which a
corporation itself may be required to do.
30. The notice given under s.29(2)(a) of the Clean Waters Act raises the
problem whether that section impliedly excludes the privilege
against self-incrimination and, if so, whether it enables the
Commissioner to compel the respondent to produce the documents sought
for use in the proceedings against it. The preceding section, s.28,
expressly excludes the privilege where a person is required to furnish
information pursuant to its terms but provides protection against the
use of the information in the prosecution of the person producing it.
Section 29 contains no such exclusion and in sub-s.(4) provides:
"Any person who wilfully delays or obstructs anThere does not seem to be any question that, to the extent that it
authorised officer, or fails to comply with any requirement
made by an authorised officer, in the exercise of his powers
under this Act, or who, being the occupier of any premises,
refuses to permit or to assist an authorised officer to do,
perform or carry out the matters or things, or any of the
matters or things, which he is authorised to do, perform or
carry out is guilty of an offence against this Act and is
liable to a penalty not exceeding $4,000."
31. But there is some difficulty encountered by the Commission at the
outset in this case because s.29(2)(a) does not appear to
envisage a
requirement being made of an occupier of premises in relation to
pollutants which were discharged some twelve months previously. In
those circumstances the relevant premises may or may not be premises
"from which pollutants are being or are usually discharged". The
attempt by the Commission to overcome this difficulty by describing
the respondent as "the occupier of premises from which pollutants are
usually discharged ... and were discharged on the 7, 10, 21 December
1989 and 13 and 18 January 1990" merely emphasizes the incongruity of
the sub-section in the particular circumstances.
32. Be that as it may, the Commission is confronted with a more basic
difficulty. The powers which are conferred by the Clean
Waters Act
upon authorized officers are clearly directed to the administrative
control of the pollution of waters. This control includes requiring
a person or authority to clean up polluted waters ((187) ss.27 and
27A.), ensuring compliance with the Act, and uncovering offences. But
it does not extend to gathering evidence after a prosecution has been
launched. The distinction is important because it is a distinction
between acting in aid of an executive function and acting in aid of a
judicial function, a distinction which was adverted to in Huddart,
Parker and Co. Pty. Ltd. v. Moorehead ((188) [1909] HCA 36; (1909) 8 CLR 330.).
If it requires clear language or a clear implication to exclude the
privilege against self-incrimination, then legislation must surely be
no less clear before it can be construed as empowering a prosecutor to
obtain compulsorily from the defendant, after the prosecution has been
commenced, the evidence which it requires to discharge the onus cast
upon it to prove its own case. Furthermore, if s.29(2)(a) could be used
after a prosecution had been launched, then the procedures of the Clean
Waters Act would cut across the procedures specifically provided for
the conduct of a prosecution by the rules of court. As Mason J
observed in Federal Commissioner of Taxation v. Australia and New
Zealand Banking Group Ltd., a power given to an official for the
purpose of performing that official's functions under an Act "must be
circumscribed by reference to this purpose" ((189) (1979) 143 CLR
499, at p.535; see also Hammond v. The Commonwealth [1982] HCA 42; (1982) 152 CLR
188, per Deane J at p.206.). Whilst, no doubt, the powers of an
authorized officer under the Act extend to the commencement of a
prosecution and even to the gathering of evidence for that purpose, the
Act does not purport to govern the manner in which the prosecution is
to be conducted. That is determined by the procedures of the court in
which the prosecution is commenced. Thus, s.29(2)(a) does not empower
an authorized officer to require the production of documents for the
purpose of furnishing evidence for the prosecution in existing
proceedings ((190) See Hamilton v. Oades [1989] HCA 21; (1989) 166 CLR 486, per
Mason CJ at p.498.). Such a requirement would not be "in the
exercise of his power under the Act". Since it is conceded that in
this case that was the only purpose of the service of the notice under
s.29(2)(a), the Commission is unable to rely upon that notice, which
was invalidly issued and served.
33. For these reasons the appeal should be dismissed.
McHUGH J The question in this appeal is whether Caltex Refining Co.
Pty. Limited ("Caltex") is required to produce documents in response
to two notices served upon it by the Environment Protection Authority
("the EPA"), formerly the State Pollution Control Commission ("the
SPCC"). Caltex asserts that it is not obliged to produce the
documents because the documents would tend to incriminate the company.
It further contends that, if, and in so far as, s.29(2)(a) of the
Clean Waters Act 1970 (N.S.W.) abolishes the self-incrimination
privilege, the power conferred by that paragraph to order the
production of documents was used for an improper purpose.
The factual background
2. On 20 March 1990, the SPCC charged Caltex in the Land and Environment
Court with the offence that, in December 1989 and January
1990, it polluted the Pacific Ocean in contravention of s.16(1) of the
Clean Waters Act. SPCC also charged Caltex with the offence that it
had contravened the conditions of its licence held in respect of a
refinery at Kurnell, contrary to s.17D(9) of the State Pollution
Control Commission Act 1970 (N.S.W.). The hearing was fixed for 2 May
1991. Several weeks before the hearing, Caltex was served with two
notices requiring the production of identical documents: a notice
pursuant to s.29(2)(a) of the Clean Waters Act served on or about
18 April 1991 and a notice to produce in accordance with the rules of
the Land and Environment Court served on or about 26 April 1991.
3. In the Land and Environment Court, Stein J held that a corporation could
not claim the privilege against self-incrimination
and that in any event s.29(2) negated the privilege. The Court of
Criminal Appeal reversed his Honour's orders ((191) Caltex Refining Co.
Pty. Ltd. v. State Pollution Control Commission (1991) 25 NSWLR
118.). It held that corporations are entitled to the privilege
against self-incrimination which meant that Caltex could resist
production under the Notice to Produce. It also held that, although
s.29(2)(a) excluded the privilege, the notice issued under that
paragraph was invalid because it was issued for the improper purpose of
obtaining evidence for use in current criminal proceedings ((192) Part
of the Court's reasoning was that the Commission was not entitled "to
circumvent the limitations which the process of the Court places upon
the power to compel production of documents". Caltex Refining Co. v.
SPCC (1991) 25 NSWLR, at p.132.).
4. In my opinion, a corporation cannot claim the privilege against
self-incrimination. Furthermore, in my opinion, the notice
issued
under s.29(2)(a) was valid, notwithstanding that it was used for the
sole purpose of obtaining evidence to support a prosecution which had
commenced.
The privilege against self-incrimination
5. Since the decision of the English Court of Appeal in Triplex Safety
Glass Co. v. Lancegaye Safety Glass (1934) Ltd. ((193)
(1939) 2
KB 395.) holding that a company may claim the privilege against
self-incrimination, the tacit assumption of the Australian legal
profession has been that the privilege is available to corporations in
this country. At all events, that is the current understanding ((194)
McNicol, Law of Privilege, (1992), p.172; Ligertwood, Australian
Evidence, 2nd ed. (1993), p.256.). That understanding has been
reinforced by a number of decisions by Australian courts which have
accepted or assumed that the privilege against self- incrimination may
be claimed by a corporation ((195) Master Builders Association of New
South Wales v. Plumbers and Gasfitters Employees' Union of Australia
(1987) 14 FCR 479, at p.487; Concrete Constructions Pty. Ltd. v.
Plumbers and Gasfitters Employees' Union (Australia) (1987) 71 ALR
501, at p.518; Trade Practices Commission v. Arnotts Ltd. (1990) 12
ATPR 41-010, at p.51-191; Trade Practices Commission v.
T.N.T. Management Pty. Ltd. (1984) 56 ALR 647, at p.698.).
Moreover, a number of statutes have been enacted on the basis that a
company can, or is likely to be able to, claim the privilege ((196) See
for example, Australian Securities Commission Act 1989 (Cth), s.68;
Corporations Law, ss.597(12), 597(12A), 1316A.). But on each occasion
that this Court has had an opportunity to consider the question, the
Court has been able to decide the case without determining the issue.
The overseas decisions
6. In England, curial recognition of the right of a corporation to claim
the privilege is of recent origin. Mr Horton QC, who
argued
the case for Caltex with great thoroughness, was able to point to only
one case in England before 1939 which arguably acknowledged the right
of a corporation to claim the privilege. He pointed to King of the
Two Sicilies v. Willcox ((197) (1850) 7 St Tr (NS) 1049.) where it
was held that, because the corporation could not be indicted for a
crime under the statute in question, the privilege did not apply. It
is probably correct, as Mr Horton submitted, that the decision in that
case proceeded upon the assumption that the privilege would have been
available if the corporation could have been indicted. However, the
case is not an authority for that proposition.
7. The seminal decision in England is Triplex ((198) (1939) 2 KB 395.)
where a company was sued for libel and slander. Its refusal
to answer
interrogatories on the ground of self-incrimination was upheld by the
Court of Appeal. In delivering the judgment of the Court, du Parq LJ
said ((199) ibid., at p.409.):
"It is true that a company cannot suffer all the pains to
which a real person is subject. It can, however, in certain
cases be convicted and punished, with grave consequences to
its reputation and to its members, and we can see no ground
for depriving a juristic person of those safeguards which
the law of England accords even to the least deserving of
natural persons."
8. Subsequent English decisions have either assumed the correctness of
Triplex or adopted it without further discussion ((200)
See, for
example, Rio Tinto Zinc Corporation v. Westinghouse Electrical
Corporation (1978) AC 547, at pp.612, 627, 647.). But recently
doubts have begun to emerge as to whether companies ought to be able to
claim the privilege. In British Steel v. Granada Television ((201)
(1981) AC 1096, at p.1127.), Lord Denning MR, without reference to
any authority, said:
"(I)n these courts, as in the United States, the privilegeWhen the case went to the House of Lords, however, Viscount Dilhorne
is not available to a corporation. It has no body to be
kicked or soul to be damned. The public interest lies much
more in making corporations disclose their misdeeds than in
giving them this shield of privilege."
9. In New Zealand, the Court of Appeal has held that the privilege is
available to a corporation ((206) New Zealand Apple and
Pear
Marketing Board v. Master and Sons Ltd. (1986) 1 NZLR 191.). That
Court rejected ((207) ibid., at p.196.) the opinion expressed by
Murphy J in Pyneboard Pty. Ltd. v. Trade Practices Commission ((208)
[1983] HCA 9; (1983) 152 CLR 328.). Two reasons influenced the Court of Appeal's
decision. First, because the prosecution can prove its case by
incriminatory admissions by officers of the corporation, "it seems
reasonable that the company should be entitled to claim self-
incrimination when it speaks through them" ((209) New Zealand Apple and
Pear Marketing Board (1986) 1 NZLR, at p.196.). Secondly, it
would be unrealistic to deny the privilege to small family businesses
that have become incorporated.
10. Prior to the enactment of the Canadian Charter of Rights and Freedoms,
Canadian courts also accepted that a corporation could
claim
the benefit of the privilege ((210) Webster v. Solloway, Mills and Co.
(1931) 1 DLR 831; Klein v. Bell (1955) 2 DLR 513; Reg. v. Bank of
Montreal (1962) 36 DLR (2d) 45.). However under s.11(c) of the
Charter, only a witness can claim the privilege ((211) Section 11 of
the Canadian Charter of Rights and Freedoms provides:
"Any person charged with an offence has the rightresult, the Supreme Court of Canada in Reg. v. Amway Corporation ((212)
...
(c) not to be compelled to be a witness in proceedings
against that person in respect of that offence".). As a
11. Courts in the United States also hold that a corporation cannot claim
the privilege. This view has prevailed since the decision
of
the Supreme Court in 1906 in Hale v. Henkel ((214) [1906] USSC 55; (1906) 201 US 43.).
In subsequent decisions, that Court has held that other collective
entities such as a trade union ((215) United States v. White [1944] USSC 109; (1944) 322
US 694.) and a partnership ((216) Bellis v. United States (1974) 417
US 85.) cannot claim the privilege. Moreover, in Braswell v. United
States ((217) (1988) 487 US 99.), the Supreme Court held that a
representative of a collective entity could not resist the production
of documents held in his or her official capacity even though the
production might incriminate him personally. Although the privilege
against self-incrimination in the United States is a matter of
constitutional guarantee, the reasons which have led the Supreme Court
to exclude corporations from the privilege are reasons which are
equally applicable in a common law context.
The role of this Court
12. This brief review of the leading authorities in Australia, England, New
Zealand, Canada and the United States shows that common
law countries have no uniform rule concerning the right of a
corporation to claim the privilege against self-incrimination. In
England, where the rule exists, it is being critically examined.
Although a number of Australian decisions in the last decade have
accepted that the privilege may be claimed by a corporation, it was
not until the decisions of Stein J and the Court of Criminal Appeal
in the present case that an Australian court has fully examined the
question whether the privilege is available to a corporation. So far
as this Court is concerned, the point is free of binding authority.
In this Court, only Murphy J has expressed a clear view on the
question. His Honour has said that the privilege is of a personal
nature and is available only to natural persons ((218) Pyneboard (1983)
152 CLR, at p.346; Rochfort v. Trade Practices Commission [1982] HCA 66; (1982) 153
CLR 134, at p.150; Controlled Consultants Pty. Ltd. v. Commissioner
for Corporate Affairs (1985) 156 CLR 385, at pp.394-395.). In
these circumstances, it is difficult to contend that there is a settled
rule in Australia on the subject. Both McNicol ((219) op cit, p.172.)
and Ligertwood ((220) op cit, p.256.), for example, accept that itis still open to this Court to hold that the privilege is not available
13. Accordingly, the remarks of Barwick CJ in Mutual Life and Citizens'
Assurance Co. Ltd. v. Evatt ((221) [1968] HCA 74; (1968)
122 CLR 556,
at
p.563.), concerning the role of this Court in declaring common law
rules, are apt:
"(W)here no authority binds or current of acceptable
decision compels, it is not enough, nor indeed apposite, to
say that the function of the Court in general is to declare
what the law is and not to decide what it ought to be. In
such a case, in my opinion, the common law is as much in
gremio judicis as ever it was, assisted and instructed now
no doubt by all that has happened through the years of its
growth: and thus in such a case the two positions of what
is and of what should be are in reality coincident. But, of
course, the Court is not to depart from what it realizes the
common law would provide in order to arrive at some
idiosyncratic solution. So to do is to attempt to legislate
and to tread forbidden ground."
14. It is, therefore, necessary to examine the history, development and
rationale of the privilege to determine what "ought to
be" the
common law of this country in relation to a claim by a corporation
that it is entitled to rely on the privilege against self-incrimination.
History
15. The privilege against self-incrimination emerged in the 17th century as
a result of dissatisfaction with the practices of
the
Council of Star Chamber and the Court of High Commission ((222) See
Wigmore on Evidence, vol.8 (McNaughton rev. 1961), par.2250 for a long
discussion of the history of the privilege.). There was much concern
with the practice of those bodies examining suspects on oath ("the ex
officio oath"), particularly in relation to matters of which they had
not been accused ((223) See Lilburn's Trial (1645) 3 How St Tr 1315
discussed by Wigmore, op cit, pp.282-283.). However, until well into
the 17th century, the common lawyers were not opposed to the notion of
compelling the accused to answer on oath. The most striking evidence
of this fact is that it was not until the 18th century that anybody
questioned the procedure that required an accused felon to be examined
by the justices of the peace on oath and the examination preserved for
the judges at the alleged felon's trial ((224) Holdsworth, A History of
English Law, vol.9, 3rd ed. (1944), pp.200-201.). The common
lawyers' real concern was with the circumstances in which a person
could be required to answer on oath and by whom the oath could be
administered. When the Courts of High Commission and Star Chamber were
abolished in 1641, the ex officio oath went with them. Almost
immediately, the claim was made that "no man is bound to incriminate
himself on any charge (no matter how properly instituted) or in any
court" ((225) Wigmore, op cit, p.289 (emphasis in original).). After
some hesitation, the privilege against answering any incriminating
question came to be recognised by the common law. By the end of the
reign of Charles II, it was the accepted rule ((226) Wigmore, op cit,
p.290.).
Rationales
16. Many and varied are the justifications that have been given for this
privilege ((227) Wigmore listed twelve justifications,
op cit,
pp.310-318. In Pyneboard (1983) 152 CLR, at p.335, Mason ACJ,
Wilson and Dawson JJ commented "it is not easy to assert confidently
that the privilege serves one particular policy or purpose".).
Historically, it probably arose as a response to what was perceived as
an abuse or potential abuse of power by the Crown in the examination of
suspects or witnesses. Once the Crown is able to compel the answering
of a question, it is a short step to accepting that the Crown is
entitled to use such means as are necessary to get the answer. Those
means need not necessarily involve physical coercion. Confessions can
be obtained by inhumane means without the necessity to resort to the
rack or other forms of physical torture. By insisting that a person
could not be compelled to incriminate him or herself, the common law
thus sought to ensure that the Crown would not use its power to oppress
an accused person or witness and compel that person to provide evidence
against him or herself.
17. Furthermore, and more importantly, the common law did not see the
criminal trial as an inquiry into guilt. Rather, like the
civil
action, it was an adversary proceeding brought by the Crown against
the accused. It followed that the Crown must prove its case against
the accused. To allow the Crown to prove its case by requiring the
accused to convict him or herself from that person's own mouth was
seen as oppressive. The whole idea of a prosecution being an
adversary proceeding was in sharp contrast to the attitude of
Continental lawyers and the system in force on the Continent. Perhaps
the view that the prosecution must prove its case was reinforced by
what Bentham ((228) Rationale of Judicial Evidence, 1978 ed., vol.5,
pp.328-329 (Bk 9, Pt 4, ch.3) cited by Wigmore, op cit, pp.297-298.)
sarcastically called: "The fox-hunter's reason": "the idea of
'fairness', in the sense in which the word is used by sportsmen. The
fox is to have a fair chance for his life".
18. However, the possibility of an abuse of power by the Crown in requiring
the accused to answer questions now provides little
justification for the existence of the privilege in curial
proceedings. No doubt, as the later history of the Star Chamber and
the Court of High Commission showed, the existence of curial
proceedings does not guarantee that the Crown will not abuse its
powers in relation to persons who are compelled to answer questions in
those proceedings. Furthermore, as the events of the Bloody Assizes
showed, the Crown, aided and abetted by judges like Jeffreys LCJ,
could oppress the accused even when the privilege against self-incrimination
had become part of the common law. As Mockler ((229)
Lions Under The Throne, (1983) pp.122-123.) says:
"The peculiar horror of the Bloody Assizes lies therefore
not so much in the numbers sentenced, the methods of
execution or the general injustice (indeed the injustice was
very little, since almost all of those sentenced were
clearly guilty ...) but in the manner in which the trials
were conducted."
19. In modern times, it is difficult to justify the privilege on the ground
that it is necessary to prevent an abuse of power.
If the
Crown should so conduct a prosecution that it constituted an abuse of
the proceedings, the conviction would be set aside ((230) Anderson
(1991) 53 A Crim R 421.). Furthermore, since, in the absence of a
statutory command, an accused or suspected person cannot be required to
answer any questions put to him or her outside the course of curial
proceedings, the rule against self- incrimination serves little purpose
in a non-curial setting. It is the right to silence, not the privilege
against self-incrimination which protects the accused outside the
court. The chief purpose of the privilege in such a setting is to lay
down a presumption that a statute is not to be construed so as to take
away the privilege in the absence of a clear intention to the
contrary.
20. However, other justifications for the privilege have been claimed. One
is that it is necessary to protect the dignity and
privacy of an accused or suspected person. Hence, it is said that the
privilege against self-incrimination is a human right. The judgments
of Murphy J have relied heavily upon this justification. In
Pyneboard ((231) (1983) 152 CLR, at p.346; see also the judgments of
Murphy J in Rochfort (1982) 153 CLR, at p.150; Controlled
Consultants (1985) 156 CLR, at pp.394-395.), his Honour said:
"The privilege against compulsory self-incrimination is partThat the justification for the privilege is the need to protect human
of the common law of human rights. It is based on the
desire to protect personal freedom and human dignity ... It
protects the innocent as well as the guilty from the
indignity and invasion of privacy which occurs in compulsory
self-incrimination".
21. This justification is closely associated with concern at the
possibility of abuse of the power by the Crown ((233) White (1944)
322
US, at p.698.) which, as I have pointed out, was the historical
reason for the privilege. But the desire to protect the human dignity
of the accused is a separate and important justification of the
privilege. A rule which requires the prosecution to prove the guilt of
an accused in the course of a judicial proceeding without reliance on
his or her incriminating answers compulsorily obtained ensures that the
prosecution must treat the accused as an innocent person whose rights
as a human being must be respected. The "show trials" of the
totalitarian state are hardly possible in a system where the accused
cannot be compelled to incriminate him or herself and the plea of not
guilty at the commencement of the trial puts the Crown to proof of
every issue and entitles the accused to a presumption of innocence
until a guilty verdict displaces that presumption.
22. A further justification for the rule is that, without it, the privacy
of the individual will be infringed. This is evident
in the
judgment of Murphy J in this Court in Pyneboard. It is also a strong
theme of the judgments of the United States Supreme Court. Thus, in
Hale ((234) (1906) 201 US, at p.74.) the Court said:
"(The individual) is entitled to carry on his private
business in his own way ... He owes no duty to the State or
to his neighbours to divulge his business, or to open his
doors to an investigation, so far as it may tend to
criminate him."
23. Another justification for the privilege is that it benefits the legal
system in a number of ways. First, it operates to encourage
persons to give evidence by removing the fear that they might have to
give evidence which will incriminate them ((235) Australia, Law Reform
Commission, Report No.26, Evidence, (1985), vol.1, p.485; also Wigmore,
op cit., p.311.). Secondly, it avoids the giving of false evidence
since witnesses who are obliged to answer questions may prefer to
commit perjury rather than incriminate themselves ((236) Australia, Law
Reform Commission, Report No. 26, Evidence, op cit, p.485-486.).
Thirdly, it maintains the integrity of the accusatorial system by
forcing the prosecution to rely upon independent evidence rather than
the self-incrimination of the accused ((237) Wigmore, op cit, p.309;
Pyneboard (1983) 152 CLR, per Mason ACJ, Wilson and Dawson JJ at
p.335; White (1944) 322 US, at p.698.).
The privilege against exposure to a civil penalty or forfeiture
24. Before dealing with the question whether a corporation is entitled to
claim the benefit of the privilege against
self-incrimination, it is convenient to deal with the rationale of
the privilege against exposure to a civil penalty or forfeiture. In
addition to refusing to lend their aid to the prosecution or defence
of proceedings by way of indictment or information ((238) Lord Montagu
v. Dudman (1751) 2 Ves. 396, at p.398 [1751] EngR 110; (28 ER 253, at p.254).),
courts of equity have traditionally refused to make an order for the
discovery of documents or the administration of interrogatories in aid
of civil actions for penalties or forfeitures ((239) Bird v. Hardwicke
[1680] EngR 36; (1682) 1 Vern. 109 (23 ER 349); Harrison v. Southcote [1751] EngR 108; (1751) 2 Ves.
Sen. 389 (28 ER 249); Smith v. Read [1736] EngR 59; (1736) 1 Atk. 526 (26 ER 332);
Green v. Weaver [1827] EngR 699; (1827) 1 Sim. 404 (57 ER 630); Redfern v. Redfern
(1891) P 139; In re a Debtor (1910) 2 KB 59.). In R. v.
Associated Northern Collieries ((240) [1910] HCA 61; (1910) 11 CLR 738.), Isaacs
J applied the penalty privilege in favour of a corporation. However,
although this privilege is distinct from the privilege against
self-incrimination, it is now settled that it was adopted by the Court
of Chancery from the courts of law ((241) Pye v. Butterfield (1864) 5
B. and S. 829, at p.838 [1864] EngR 803; (122 ER 1038, at p.1042); Earl of Mexborough
v. Whitwood Urban District Council (1897) 2 QB 111, at pp.116,
120-121; Pyneboard (1983) 152 CLR, at p.337.).
Furthermore, Pyneboard establishes that the privilege against exposure
to a civil penalty is not confined in its application to discovery,
interrogatories or testimonial disclosures. It is a general privilege
which, absent a contrary legislative indication, may be invoked
outside the course of judicial proceedings whenever a person is asked
to answer questions or provide information which may tend to expose
that person to a penalty.
25. Once it is accepted that the origin of the privilege was the common
law, that it was not invented by the Court of Chancery,
and
that it is a general privilege which applies outside judicial
proceedings, it is difficult, if not impossible, to distinguish the
rationale of this privilege from the rationale of the privilege
against self-incrimination. First, in Smith v. Read ((242) (1736) 1
Atk., at p.527 (26 ER, at p.332).), Lord Hardwicke made it clear
that the privilege against exposure to a penalty or forfeiture was
implied from the rule that "a man is not obliged to accuse himself".
Secondly, the majority decision of this Court in Pyneboard is
inconsistent with the proposition that the penalty privilege derives
from the limitations which the court of Chancery, or for that matter
the courts of law, placed on their power to compel a person to provide
information against him or herself. The decision in Pyneboard
establishes that the privilege is a general privilege not limited to
curial proceedings. Consequently, if the privilege against
self-incrimination is not available to a corporation, the privilege
against exposure to a civil action for a penalty is not available to a
corporation, notwithstanding that in Associated Northern Collieries,
Isaacs J refused to order the corporate defendants to make discovery
of documents in a civil action for a penalty.
Corporations
26. In so far as the privilege against self-incrimination is viewed as a
human right protecting the dignity of the accused, it
obviously
does not apply to corporations. Nevertheless, it is arguable that the
privilege should extend to corporations so as to protect the human
rights of individuals who represent them in curial proceedings.
First, individuals representing corporations are as susceptible to
abuse by the prosecution as any other individual who is being
questioned. An admission by such a person may be vital to the
prosecution's case against the corporation. Consequently, the
prosecution may be tempted to abuse its power in respect of such a
witness. But, as I have already pointed out, the argument that the
privilege is necessary to protect the accused against an abuse of
power is not a strong argument in modern times. Furthermore, a
similar argument could be used in respect of the evidence of any
witness against an accused person. Yet such a witness can be
compelled to answer a question although it might incriminate the
accused. No reason exists for making an exception for a witness
representing or testifying on behalf of a corporation. Secondly, a
witness representing or testifying on behalf of a corporation may be
reluctant to reveal information because that person's own fate is
bound up with that of the corporation ((243) The hardship to persons
forced to choose between harmful disclosure contempt and perjury is an
argument mounted in favour of the privilege: see Australia, Law Reform
Commission, Report No.26, Evidence, op cit, p.485. In the case of a
corporation, witnesses would be forced to choose between perjury,
committing contempt of court or testifying against their employer.).
But this is true of witnesses other than those representing or
testifying for a corporation, and such witnesses are not protected by
the privilege.
27. A more powerful reason for extending the privilege to corporations is
the need to protect the individual members of
corporations against the consequences of punishing the corporation.
In Triplex ((244) (1939) 2 KB, at p.409.), du Parcq LJ said:
"It is true that a company cannot suffer all the pains toIn the Court of Criminal Appeal, Gleeson CJ found this reason to be
which a real person is subject. It can, however, in certain
cases be convicted and punished, with grave consequences to
its reputation and to its members". (emphasis added)
28. Gleeson CJ also thought that the privacy justification warranted the
extension of the privilege to corporations. His Honour,
who considered that one of the justifications for the privilege
against self-incrimination was that "it assists to hold a proper
balance between the powers of the State and the rights and interests
of citizens" ((247) Caltex Refining Co. v. SPCC (1991) 25 NSWLR,
at p.127.), thought that corporate citizens should be afforded the
benefit of the privilege because they, as much as individuals, are
entitled to the rights of citizenship. The current widespread use of
the expression "corporate citizen" seems to owe more to the objects of
the public relations industry than to the analysis of the legal concept
of citizenship. But, even if an artificial entity can be regarded as a
citizen, the argument based on privacy is not, in my opinion, a strong
one for holding that a corporation should be able to claim the
privilege. In Hale ((248) (1906) 201 US, at pp.74-75.), the Supreme
Court said:
"(T)he corporation is a creature of the State. It is
presumed to be incorporated for the benefit of the public.
It receives certain special privileges and franchises, and
holds them subject to the laws of the State and the
limitations of its charter. ... It would be a strange
anomaly to hold that a State, having chartered a corporation
to make use of certain franchises, could not in the exercise
of its sovereignty inquire how these franchises had been
employed, and whether they had been abused, and demand the
production of the corporate books and papers for that
purpose."
29. It is true that the Supreme Court no longer relies upon this
"visitatorial power". The doctrine was "jettisoned" ((249) According
to the Court in Braswell (1988) 487 US, at p.108.) as a result of
the decision in White which denied the privilege to an unincorporated
association (a trade union). White ((250) (1944) 322 US, at p.701.)
held that:
"Structurally and functionally, a labour union is anFurthermore, corporations are no longer confined to exploiting
institution which involves more than the private or personal
interests of its members. It represents organized,
institutional activity as contrasted with wholly individual
activity."
30. However, the most powerful reason for allowing a corporation to claim
the privilege is that the privilege against self-incrimination
is a natural, although not a necessary, consequence of the adversary
system. It is a fundamental rule of the common law that, whatever the
charge and wherever it is tried, the onus of proving the guilt of the
accused rests upon the Crown and never shifts to the accused ((251)
Woolmington v. DPP [1935] UKHL 1; (1935) AC 462, at p.481.). That rule is
reinforced by the further rule that an accused person cannot be
compelled to give evidence in defence of his or her plea of not guilty.
The practical effect of those rules is that the prosecution must provethe guilt of the accused by evidence other than the compulsory answers
31. If the only rationale of the privilege was the need to maintain the
integrity of the adversary system, it might be difficult
to deny
its application to a corporation while granting it to an individual
even though a corporation itself cannot give evidence. But, as I have
pointed out, important and independent rationales of the privilege are
the desires to protect the human dignity and the privacy of the
accused. Protecting the dignity of the accused has no application in
the case of a corporation, and protecting the privacy of a corporation
does not have the same force as it does in the case of a natural
person. So in the end, the case for extending the privilege to a
corporation must rest mainly, if not wholly, on the effect on the
adversary system if the privilege was not available to a corporation.
32. If the privilege was denied to a corporation, it would enable the
prosecution to obtain documents from the corporation by
way of
subpoena without the limitations inherent in the case of search
warrants. Absent statutory authority, a search warrant cannot be
framed in general terms ((252) Entick v. Carrington [1765] EWHC J98; (1765) 19
How St Tr 1029.). It is true that a subpoena must also specify the
documents which it seeks and cannot be used as a substitute for
discovery ((253) The Commissioner for Railways v. Small (1938) 38
SR (NSW) 564, at p.573.). But more latitude is allowed in the
case of a subpoena than a search warrant. The warrant authorises not
only the taking of real evidence but also the entry into and the
searching of the premises and possessions of the accused. Because the
privacy of the occupier is so gravely invaded by a search warrant, the
warrant is strictly construed ((254) George v. Rockett [1990] HCA 26; (1990) 170
CLR 104, at pp.110-111.). Ordinarily, it can only be issued by a
justice of the peace upon a sworn information. A subpoena requires no
affidavit or information to support its issue and may be valid even
though framed in general terms, provided it does not require the
addressee to determine whether the documents are relevant to an issue
in the proceedings ((255) National Employers' Mutual General
Association Ltd. v. Waind and Hill (1978) 1 NSWLR 372, at p.382.).
Thus, to deny a corporation the right to claim the privilege against
self-incrimination would weaken its position in relation to the
production of documents called for on subpoena. In many cases, it
would significantly assist the prosecution to prove its case against
the corporation. Of course in some cases, the documents will be in the
custody of an individual and not the corporation and will be required
to be produced, if subpoenaed. Nevertheless, to deny the privilege to
a corporation would significantly weaken the forensic position of a
corporation and significantly strengthen the forensic position of the
prosecution.
33. Furthermore, denial of the privilege to a corporation would require it
to discover incriminating documents and expose it to
giving
incriminating answers to interrogatories in civil proceedings. The
documents and answers could then be used in subsequent criminal
proceedings. No procedure presently exists for obtaining discovery or
administering interrogatories in criminal proceedings, but the
existing procedures in civil actions can be readily used to obtain
orders for discovery and interrogatories in civil actions for
penalties. Hitherto, as I have already pointed out, the law has not
permitted a defendant to be interrogated or required to produce
documents in a civil action for a penalty ((256) In re a Debtor (1910)
2 KB 59, at pp.65-66; R. v. Associated Northern Collieries [1910] HCA 61; (1910) 11
CLR 738, at pp.747-748; Pyneboard (1983) 152 CLR, at pp.335-336.).
If a corporation were denied the privilege against
self-incrimination, no reason would exist for denying the plaintiff the
right to discovery and interrogatories in an action for a penalty.
Again the forensic position of the corporation would be considerably
weakened. Furthermore, the documents discovered and the answers given
to interrogatories in an action for a penalty could be used in
subsequent criminal proceedings.
34. Accordingly, although a corporation cannot itself give evidence in
civil or criminal proceedings, denial of the privilege
against
self-incrimination to a corporation will undermine its position in the
adversary system.
35. However, in determining what common law rule concerning
self-incrimination is "appropriate to current times in Australia" ((257)
Mutual Life (1968) 122 CLR, at p.563.), weight must be given to the
difficulties in obtaining evidence against corporations if they are
entitled to claim the privilege against self-incrimination. Mr Horton
argued that concerns about the behaviour of corporations and the
difficulties of obtaining evidence against them are matters for the
legislature, rather than the courts. He argued that no assistance was
to be obtained from the United States cases on this point. He pointed
out that, in the United States, the privilege against
self-incrimination is a constitutional guarantee which would prevent
legislatures in that country from enacting procedures to obtain
information if the privilege extended to corporations. Mr Horton
claimed that, as a result, the Supreme Court of the United States was
obliged to confine the scope of the privilege ((258) See Pyneboard
(1983) 152 CLR, at p.335.). Because the legislatures of this
country are able, where they consider it appropriate, to abrogate the
privilege, he urged the Court not to follow the United States example
and to leave the task of confining the privilege to the legislature
which could deal with individual situations on a statute by statute
basis.
36. But when the contemporary rationales of the principle are not fully
applicable to corporations, it would be wrong to apply
the
principle against self-incrimination in favour of corporations
mechanically without considering the reasons which tell against
applying the principle. Those reasons must be weighed in determining
the appropriate scope of the privilege. If the harm to the
administration of justice resulting from allowing corporations to
claim the privilege outweighs the harm from rejecting the claim, it
would not be appropriate to extend a privilege, which began as a
protection for individuals, to an artificial entity such as a
corporation.
37. Weighing heavily against granting the privilege to corporations is "the
public interest in the administration of justice that
requires
that the parties be given a fair trial on all the relevant and
material evidence" ((259) Sankey v. Whitlam [1978] HCA 43; (1978) 142 CLR 1, per
Mason J at pp.95-96.). That does not mean, of course, that the
public interest requires that all probative and relevant evidence
should be available for the purpose of litigation. Other aspects of
the public interest may require that relevant evidence be excluded, not
only from the proceedings but also from the knowledge of the opposite
party. Thus, evidence concerning national security, police informers
and communications between legal adviser and client is privileged from
production even though it is relevant and probative. It is privileged
because the judgment of the common law is that the privilege of
non-production in those cases serves an aspect of the public interest
which, on balance, is superior to the public interest in having
available all probative evidence relevant to an issue to be tried in
judicial proceedings. Evidence excluded by the privilege against
self-incrimination is another example of evidence privileged from
production in the public interest. Where an individual claims the
privilege against self-incrimination, the judgment of the common law is
that the public interest is best served by allowing the claim. This is
because the public interest in protecting the dignity and privacy of
the accused and in preserving the integrity of the adversary system is,
on balance, superior to the public interest in having available in
judicial proceedings incriminating evidence compulsorily obtained from
the accused. But it does not follow that, on balance, the public
interest is best served by a corporation being able to claim the
privilege against incrimination.
38. Corporate conduct is often complex. Assessment of a corporation's
conduct may only be possible through an examination of
its documents ((260) Ramsay, "Corporations and the Privilege against
Self- Incrimination", (1992) 15 University of New South Wales Law
Journal 297, at pp.306-307; Hale (1906) 201 US, at p.74; White
(1944) 322 US, at p.700.). This is particularly so in cases where
the alleged wrong is committed as a result of the failure of a system
set up by a corporation ((261) Professor Ashworth (Principles of
Criminal Law, (1991), p.82) has said of corporate disasters such as the
Bhopal chemical factory disaster and the capsize of the ferry, the
Herald of Free Enterprise:
"There are few who believe that these disasters can becorporation's procedures is likely to be gained only through evidence
presented as the responsibility of a few individuals.
Indeed, enquiries into the disasters have tended to
emphasize the role of deficiencies in the systems of
management and accountability."). A true understanding of the
39. To deprive the corporation's opponent - whether it is the Crown or a
private litigant - of evidence which will assist that
party's
case is a high price for the administration of justice to pay in
return for securing the integrity of the adversary system of
justice. Corporate behaviour, moreover, has enormous social
impact ((264) Australia, Parliament, Report of Joint Statutory
Committee on Corporations and Securities, op cit, at pp.26-27.), a
factor recognised in the United States cases. In Braswell ((265)
(1988) 487 US, at p.115; see also White (1944) 322 US, at p.700;
Bellis (1974) 417 US, at pp.90-91.), for example, the Supreme Court
was influenced to restrict the scope of the privilege by its conclusion
that "white collar crime" was "one of the most serious problems
confronting law enforcement authorities".
40. In civil actions, the case for requiring corporations to disclose all
relevant documentary evidence is overpowering. To permit
a
corporation to claim the privilege in civil proceedings is to deprive
the opposite party of evidence which will assist that party's case.
Sometimes, that evidence will completely destroy the corporation's
case. In Istel ((266) (1993) AC, at p.53.), Lord Templeman said
that it was "difficult to see any reason why in civil proceedings the
privilege against self- incrimination should be exercisable so as to
enable a litigant to refuse relevant and even vital documents which are
in his possession or power and which speak for themselves". In
producing such documents, the corporation is not creating evidence
against itself, as would occur if an individual could be compelled to
give incriminating answers. The documents already exist. In the light
of the extensive inroads made by legislatures into the privilege by
requiring the production of corporate documents, it is difficult to
maintain that the adversary system in civil proceedings will be
imperilled if the privilege is held not to apply to corporations ((267)
Istel (1993) AC, at p.62.). Indeed, it is difficult to contend that
a corporation, which is the creature of the law, suffers injustice if
it is obliged to produce all relevant evidence in civil proceedings
even though it proves or tends to prove that it has breached the law.
Because that is so, no distinction ought to be drawn for the purpose of
civil proceedings between the production of documents and other forms
of evidence such as answers to interrogatories which tend to
incriminate a corporation. If criminal proceedings are pending or
threatened, it is open to a civil court, by appropriate orders, to make
orders to prevent any oppression of a corporation as the result of
ordering discovery or interrogatories in its proceedings ((268) See for
example, the orders made in Istel (1993) AC 45.).
41. Similarly, a strong case can be made in favour of the conclusion that
the privilege should not be exercisable by a corporation
so as to
prevent the prosecution obtaining, by subpoena, documents which are
relevant to the issues in criminal proceedings. The documents exist.
They can be obtained by search warrant. If they are relevant to an
offence, they cannot be altered or destroyed because to alter or
destroy them would constitute the offence of attempting to pervert the
course of justice ((269) Reg. v. Vreones (1891) 1 QB 360.). Why
then should this evidence be allowed to remain hidden in the files of
the corporation when it is relevant to an issue to be tried in criminal
proceedings? It is difficult to see how the administration of justice,
even under the adversary system of criminal justice can be advanced by
allowing a corporation to refuse to produce documents on subpoena
simply because the documents tend to incriminate the corporation. If a
corporation can refuse to produce documents, the public interest in
detecting and punishing crime is diminished so that the integrity of
the adversary system can be maintained for the benefit of an artificial
entity. This is much too high a price to pay for allowing corporations
to claim the privilege.
42. In my opinion, the public interest in the adduction of relevant
evidence in civil and criminal proceedings outweighs the detriments
associated with refusing to allow corporations to claim the privilege.
This Court should hold, therefore, that a corporation cannot claim the
privilege against self-incrimination.
43. One further matter must be noted. From time to time, legislatures in
Australia have enacted statutes on the basis that the
privilege is available to corporations. However, a court may declare
a particular rule to be a common law rule even though Parliament has
legislated on the view that the common law was not in accordance with
that rule ((270) West Midland Baptist Association v. Birmingham
Corporation (1970) AC 874; Corporate Affairs Commission (N.S.W.) v.
Yuill [1991] HCA 28; (1991) 172 CLR 319.). Moreover, no statute of an Australian
Parliament, so far as I am aware, has declared, expressly or
inferentially, that the privilege against self-incrimination applies to
corporations. They merely assume that the privilege exists and enact
provisions which alter it ((271) See for example, Australian Securities
Commission Act 1989 (Cth), s.68; Corporations Law, ss.597(12),
597(12A), 1316A.). Having regard to the understanding of the
profession and the Australian decisions to which I have referred, this
assumption is understandable. But it cannot affect the duty of this
Court to declare the common law of self-incrimination as it perceives
it to be at this stage of the development of the Australian common law.
In my opinion, the common law of Australia does not recognise a claimby a company to a privilege against self-incrimination.
The s.29 notice
44. It is common ground between the parties that the s.29(2)(a) notice was
served for the sole purpose of obtaining evidence or
information for use in the prosecution of the offences alleged against
Caltex and the notice was issued after the commencement of the
prosecutions. Section 29(2)(a) provides:
"An authorised officer may, by notice in writing, require -Gleeson CJ held that s.29(2)(a) impliedly excluded the privilege
(a) the occupier of any premises from which pollutants are
being or are usually discharged into any waters to
produce to that authorised officer any reports, books,
plans, maps or documents relating to the discharge from
the premises of pollutants into the waters or relating
to any manufacturing, industrial or trade process
carried on on those premises;
...
and may take copies of any such reports, books, plans, maps
or documents."
45. It is not open to doubt that a notice may be issued under s.29(2)(a)
for the purpose of obtaining evidence to support a
prosecution under the Clean Waters Act. Nor is there any reason to
suppose that the power cannot be used to obtain evidence to support
the prosecution of an offence against the State Pollution Control
Commission Act. Nothing in the terms of s.29(2)(a) suggests that the
power conferred by that provision to obtain evidence against a person
is spent once proceedings against that person have been commenced.
Why then should there be read into this statutory provision the
limitation that the power can never be used after the commencement of
a prosecution?
46. Gleeson CJ thought that considerations arising from the doctrine of the
separation of powers required the conclusion that
s.29(2)(a) should not be construed so as to include "the purpose of
gathering evidence for use in current criminal proceedings or of
enabling the prosecution to circumvent the limitations which the
process of the Court places upon the power to compel production of
documents". In reaching this conclusion, his Honour was influenced by
the decisions in Melbourne Steamship Co. Ltd. v. Moorehead ((272)
[1912] HCA 69; (1912) 15 CLR 333.) and Brambles Holdings Ltd. v. Trade Practices
Commission ((273) [1980] FCA 120; (1980) 32 ALR 328.) and the comments of O'Connor
J in Huddart Parker and Co. Pty. Ltd. v. Moorehead ((274) [1909] HCA 36; (1990) 8
CLR 330, at pp.379-380.). Those cases were concerned with the
construction of federal statutes in a context where the Constitution
precludes the executive government from exercising, or interfering with
the exercise of, the judicial power of the Commonwealth. Gleeson CJ
was conscious of the fact that "the reasoning in those cases was
influenced by considerations of separation of powers which are more
significant in the Federal than the State area". However, his Honour
rightly pointed out that "underlying issues as to the interference by
the Executive in the process of adjudication by courts ... are of
abiding importance".
47. Nevertheless, important as those issues are, they cannot have the same
influence in the construction of statutes enacted under
an
uncontrolled constitution such as that which exists in New South Wales
as they do in a system where the doctrine of separation of powers is
part of the supreme law of the body politic. In the federal sphere, a
statute may be invalid unless it can be read down so as to be
consistent with the doctrine of separation of powers. That sometimes
means that a statute must be given a construction which, although
open, is not the most natural reading of the provision. In the State
sphere, however, the analogous rule cannot be put higher than that, in
the absence of clear legislative indication to the contrary, a statute
should not be read as authorising an interference with the course of
justice. In Pioneer Concrete (Vic.) Pty. Ltd. v. Trade Practices
Commission ((275) [1982] HCA 65; (1982) 152 CLR 460, at p.473.), Mason J pointed
out that a general power such as s.29(2)(a) should not be read as
authorising any action which would amount to a contempt of court.
48. Obtaining evidence under a statutory power for the purpose of assisting
a party in pending litigation does not necessarily
constitute an interference with the procedures of the courts. The
evidence gathering procedures of a party are not limited to the use of
court procedures. No interference with the processes of the courts or
the course of justice occurs merely because a party avails itself of a
statutory power to obtain evidence during the course of pending
litigation. The mere use of such a power during the pendency of
litigation is not a contempt of court even when the sole purpose of
the exercise of the power is to assist a party to obtain evidence for
use in that litigation. To constitute a contempt, the party must
exercise the power in such a way that it interferes with the course of
justice. Thus, there might be a contempt if the exercise of a
statutory power "would give such a party advantages which the rules of
procedure would otherwise deny him" ((276) Pioneer Concrete, (1982) 156
CLR, per Gibbs CJ at p.468.). But something more is required
than that the party exercised the power for the purpose of obtaining
evidence for use in pending litigation.
49. In the present case, use of the power under s.29(2)(a) did not
constitute a contempt of court. Because a corporation cannot claim
the privilege against self-incrimination, use of the s.29 power did
not give the prosecutor any advantage which the rules of court
otherwise denied to it. Accordingly, in my opinion, the power under
s.29(2)(a) was not used for an improper purpose. The notice given
under that paragraph was a valid notice.
Order
50. The appeal should be allowed. The questions should be answered as
follows:
Q.1: No.
Q.2: Yes.
Q.3: Yes.
Q.5: No.
Q.6: No.
Q.7: No.
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