Proctor : February 2019
15 PROCTOR | February 2019 Master your career. Postgraduate Applied Law Programs with practical learning you can immediately apply to your work. Intake 1 Commences 18 Feb 2019 Enrol at collaw.edu.au/ALP or call 1300 506 402 Choose from 11 areas of law specialisation streams Sarah Ford is an associate at Gilshenan & Luton Legal Practice. adduce in support of its case that the offence charged was proved beyond reasonable doubt. The consequence is inescapable.” 20 As triumphant as this decision may seem (insofar as an accused’s rights are concerned), it would be remiss to suggest that the position on this issue is settled. Justice Applegarth, in his dissenting judgment, made a number of observations and findings that cannot be ignored, and which undoubtedly leave the issue open to agitation on a case-by-case basis. Amongst other things, Justice Applegarth raised the competing (and arguably compelling) view that, as fundamental as the privilege against self-incrimination is, the legislated abrogation of that privilege21 tends to suggest that public interest in ensuring a successful prosecution of the ‘guilty’ outweighs the private interest in claiming privilege against self-incrimination. 22 Justice Applegarth’s reasoning here seemingly echoes the public interest considerations of the minority in X7, suggesting that we are far from having a settled judicial position on the issue. Conclusion For many of us who practise in administrative and criminal law, the Leach scenario is all too familiar. With X7, the Lee cases, and now Leach, practitioners are armed with a collection of cases that they can use to help navigate their way through this complex and increasingly prevalent issue. Having said that, what these cases make clear is that each case will turn on its own facts and applicable legislation. In the absence of a clearly settled judicial position, it is incumbent upon practitioners to be vigilant in ensuring that their client’s criminal proceedings are conducted fairly, and the rules and principles about compelled evidence as articulated in these cases, remain intact. Criminal law Notes 1 R v Leach  QCA 131. 2 For example, the Taxation Administration Act 1953 (Cth), the Australian Crime Commission Act 2002 (Cth) and the Crime and Corruption Act 2001 (Qld). 3 However upon a claim for self-incrimination privilege, the answer given would be inadmissible in evidence against that person in a criminal proceeding. 4 As provided for at the time in the Australian Crime Commission Act 2002 (Cth), which expressly made compelled answers inadmissible in a criminal proceeding for charges against the examinee once privilege against self-incrimination had been claimed. 5 X7 v Australian Crime Commission & Another  HCA 29 at . Interestingly, the Australian Crime Commission Act 2002 (Cth) has since been amended to allow examinations of an accused both pre and post-charging (see s24A). 6 Being the Criminal Assets Recovery Act 1990 (NSW). 7 In that the court has, for example, the power to conduct the examination in private, to disallow questions, and to restrict publication (see . 8 Lee No.2 at . 9 Leach at . 10 Leach at . 11 Along with R v Seller & McCarthy [2-13] NSWCCA 42 and Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564. 12 Being Sofronoff P and Philippides JA. 13 Leach at . 14 Leach at . 15 Leach at . 16 Leach at . 17 Section 8(1) Evidence Act 1977 (Qld). 18 Leach at . 19 Leach at . 20 Leach at . 21 Without corresponding protection against the use of compulsorily obtained evidence. 22 See, for example, Applegarth J’s comments at .