Tanabe CATCHWORDS EVIDENCE - STATUTORY INTERPRETATION - EXAMINATION UNDER S.243F OF THE CUSTOMS ACT - Privilege against self-incrimination and self-exposure to penalty excluded - Principles of construction applicable where statute impliedly excludes privilege - Legal professional privilege not excluded by s.243F ~- Applicability of inter-spousal communication privilege - Compellability of spouse to give evidence - Liability to penalty a civil liability - Court's discretion where defendant to be examined is also facing criminal charge. Customs Act 1901, ss.243A - S Federal Court of Australia Act 1976, s.58 Crimes Act 1900 (NSW), s.407 Evidence Act 1898 (NSW), s.11 The Queen v. Smithers; Ex parte McMillan (1982) 152 C.L.R. 477 The Queen v. Scott [1856] 25 L.J.M.C. (N.S.) 128 Sorby v. The Commonwealth of Australia (1983) 152 C.L.R. 281 Hammond v. The Commonwealth of Australia (1982) 152 C.L.R. 188 Pyneboard Proprietary Limited v. Trade Practices Commission (1983) 152 C.L.R. 328 Mortimer v. Brown (1970) 122 C.L.R. 493 Controlled Consultants Proprietary Limited v. Commissioner for Corporate Affairs (1985) 156 C.L.R. 385 Baker v. Campbell (1983) 153 C.L.R. 52 Arno v. Forsyth (1986) 65 A.L.R. 125 Rumping v. Director of Public Prosecutions [1964] A.c. 814 Gapes v. Commercial Bank of Australia Ltd. (1979) 38 F.L.R. 431 Clyne v. Deputy Federal Commissioner of Taxation 1985 (2) A.T.C. Re Clyne; Ex parte Deputy Commissioner of Taxation, unreported, Jackson J., 16 September 1986 Commissioner of the Australian Federal Police v. Ian Ormond Cox, unreported, Pincus J., 24 December 1986 THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -V- McMILLAN & HARDES ae NSW G.82 of 1986 Burchett J. Sydney 8 January 1987 ~ 8 JAN [987 FEDERAL COURT OF AUSTRALIA PRINCIPAL PEGISTRY NEW SOUTH WALES DISTRICT REGISTRY IN THE FEDERAL COURT OF AUSTRALIA No. G.82 of 1986 GENERAL DIVISION BETWEEN: THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Applicant E a oO KENNETH JAMES McMILLAN and PETER WILLIAM HARDES Defendants REASONS FOR JUDGMENT BURCHETT J. Sections 243A to 243S of the Customs Act 1901 provide for remedies, of an unusual kind and of great severity, to curb the activities of drug traffickers. Jurisdiction 1s by s.243S conferred upon the Federal Court of Australia to hear and determine applications under these provisions. The central provision is s.243B, the validity of which (as well vas of s.243E) was upheld by the High Court in The Queen ve Smithers; Ex parte McMillan (1982) 152 C.L.R. 477. Under that section, 'designated persons including the Commissioner of Police (an expression defined in s.4 as referring to the applicant) may institute a proceeding for an order that a person pay a pecuniary penalty to the Commonwealth in respect of certain narcotics dealings. By sub-s.(3), 1t is provided that the Court may order the payment of a penalty "whether or not (the defendant) has been convicted of an offence, or proceedings have been instituted in respect of any offence" committed in relation to the dealing or dealings which gave rise to the liability to the penalty. By sub-s.(2) the penalty is to be equal to the value, assessed in accordance with s.243C, of the benefits derived by the defendant from that dealing or those dealings. This provision was held to be mandatory in Commissioner of the Australian Federal Police v. Curran (1984) 3 F.C.R. 240 at 250. A particularly important section 1s s.243E, pursuant to which, where an application has been made for an order under s.243B, the applicant may seek ex parte an order directing the Official Trustee in Bankruptcy to take control of specified property or of all the property of the defendant. Where the evidence referred to in that section is adduced, the Court "shall make an order directing the Official Trustee to take control" of the specified property, or of all the property of the defendant. There is power for the Court to "make provision for meeting the reasonable living and business expenses of the defendant out of that property, or out of a specified part of that property". There is also power for the Court to refuse an order if the Commonwealth refuses or fails to give to the Court appropriate undertakings with respect to the payment of damages or costs. relevant, It is in this setting that the section $.243F, provides: "(1) Where the Court makes, or has made, an order (in this section referred to as the 'original order') under sub-section 243E (1) directing the Official Trustee to take control of specified property, or all of the property, of a person (in this section referred to as the 'defendant'), the Court May, at the time 1t makes the original order or at any subsequent time, make such orders in relation to that property as the Court considers just and, without limiting the power so conferred on the Court, the Court may, at any time or from time to time, make an order - (d) directing the defendant to furnish to the Official Trustee, within a time specified in the order, a statement, verified by the oath or affirmation of the defendant, setting out such particulars of the property of the defendant as the Court deems proper; (e) for the examination of the defendant or another person before the Court or the Registrar of the Court concerning the nature and location of the property of the defendant; or oe (2) An application for an order under sub-section (1) may be made - (a) by the Official Trustee; (b) by the Minister, the Commissioner of Police or the Comptroller; (c) by the defendant; or (d) with the leave of the Court, by any other person. (3) Where the defendant or another person is presently examined before the Court or the Registrar of the Court in pursuance of an order under sub-section (1), a statement or disclosure made by him in answer to a question put to him in the course of the examination is not admissible against him in any civil or criminal proceedings except - (a) in a proceeding for giving false testimony in the course of the examination; or (b) in a proceeding for the recovery of a pecuniary penalty for the purpose only of facilitating the assessment of the amount of the pecuniary penalty." In the present case, orders were made by Jackson J. under ss.243E and 243F directing the Official Trustee to take control of all of the property of the defendants (as they are called by s.243F(1) and Order 60 Rule 1(3)), and for the examination of the defendants and other persons before the Court. The examinations have been commenced and in part completed before me. At this stage certain objections have been taken and foreshadowed, and it is necessary that I give rulings. As has been indicated, s.243B contemplates that proceedings to enforce a pecuniary penalty may be instituted whether or not proceedings have been instituted in respect of any offence committed in relation to a relevant narcotics dealing. Prosecutions have, 1n the present case, been launched against the defendants, but a date has not yet been fixed for their trial. In that situation, the principal matter argued is whether objection can be taken to questions asked, upon examination of the defendants themselves, on the ground that the answers might —e et ester eee et ee tena Sele eer mh mt eG ome incriminate them. It is submitted that s.243F(3) is insufficient to abrogate the common law protection against self-incrimination, both in principle (because the actual tender of incriminating answers 1S not the only way in which they could be used against a defendant) and upon the authority of Sorby v. The Commonwealth of Australia (1983) 152 C.L.R. 281. Counsel for the defendants point out that evidence concerning the acquisition of assets might be utilised as circumstantial evidence in a prosecution relating to the alleged importation of narcotic goods. It is said that the Crown case, upon the committal proceedings against at any rate one of the defendants, was in part reliant upon circumstantial evidence of that kind, and upon inferences to be drawn from the alleged false explanations given by that defendant of his sudden acquisition of wealth. The principle that a man must not be required to incriminate himself was described by Lord Campbell C.J., speaking also for Alderson B., Willes J. and Bramwell B., in The Queen v. Scott [1856] 25 L.J.M.C. (N.S.) 128 at 132 as "the great maxim of English law, 'Nemo tenetur seipsum accusare.'" However, he added: "So, undoubtedly, says the common law of England. But parliament may take away this privilege, and enact that a party may be bound to accuse himself, that is, that he Must answer questions by answering which he may be criminated", though Coleridge J., dissenting, at 135 described such a 7 6. procedure as "this new and un-English mode", which he thought violated "a sacred principle of our law". Where the rule applies, it covers the case of evidence which may form part of a chain of circumstantial evidence implicating the witness in a crime: Ex parte P. re Hamilton (1957) 74 W.N.(NSW) 397; and see Sorby's case at 291-2. It has been repeatedly held that, to use the language of Gibbs C.J. in Hammond v. The Commonwealth of Australia (1982) 152 C.L.R. 188 at 197-198, "it would be necessary to find a clear expression of intention before one could conclude that the legislature intended to over-ride so important a privilege as that against self-incrimination." In Sorby's case (supra) the High Court held that legislation providing for Royal Commissions could not _ be construed as abrogating the privilege merely because it contained a provision rendering inadmissible in evidence in a prosecution an answer given before the Royal Commissioner, a view foreshadowed by Gibbs C.J. in Hammond's case at 198 and supported by Lord Wilberforce's remarks in Rank Film Distributors Ltd. v. Video Information Centre [1982] A.c. 380 at 443: see Sorby's case at 294-5, per Gibbs C.J., and at 310-1 per Mason, Wilson and Dawson JJ. The joint judgment of Mason, Wilson and Dawson JJ. at 309 contains the following: I" "The privilege against self-incrimination is deeply ingrained in the common law. The principle is that @ statute will not be 7. construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication: Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pars. 113-116; Pyneboard (Pyneboard Proprietary Limited v. Trade Practices Commission (1983) 152 C.L.R. 328); Crafter v. Kelly [1941] S.A.S.R. 237, at p.242. Mortimer v. Brown (1970) 122 C.L.R. 493 furnishes a compelling illustration of a statute which abrogates the privilege by necessary implication. There it was held that s.250 of The Companies Act of 1961 (Q.) excluded the privilege in the public examination by a judge of directors of a company involved in voluntary liquidation." At 310 the joint judgment continues: "Here the State Act makes provision for Royal Commissions generally, without regard to the character of the terms of reference as expressed in the relevant letters patent. Accordingly, it is of no moment that the Commissioner 1s by his letters patent ' required to inquire whether persons associated with Terrence John Clarke contravened laws of the Commonwealth and Queensland and to establish the identity of those persons. Nor does 1t matter that the offences suspected are drug offences, the Commission of which is difficult to discover and establish. The point is that we are seeking to discover whether or not there is an intention in the statute to abrogate the common law privilege and that the statute is directed to Commissions generally, whether concerned with contraventions of the law or not." | Sorby's case is strongly relied upon by the defendants, but it is to be noted that in the passage lastly cited from the joint judgment the character of the statute there in question plays a significant part in the reasoning, and considerations a — + i peculiar to provisions dealing with drug offences are put to one side on the basis of the generality of the statute. The passage is open to the view that such considerations might lead to a very different result in the case of statutory provisions directed specifically to the problems of drug offences which, as is pointed out, may be "difficult to discover and establish". After referring to s.14(2) of the Queensland Act there under examination, the section protecting a witness from the tender of his answers in subsequent criminal proceedings, and pointing out that this section "does not provide a protection to the witness which is co-extensive with the protection given to him by the privilege", since once the information is obtained proof may ensue otherwise than by tender of the admission, the joint judgment continues: "Nevertheless, the presence of s.14(2) then provokes the question: What purpose is the sub-section intended to serve if it 1s not to protect the witness from the consequences of abrogation of the privilege? When a legislature abrogates the privilege against self-incrimination it often gives compensatory protection to the witness by providing, as s.14(2) does, that an answer shall not be admissible in civil and criminal proceedings other than in proceedings for contempt or for an offence under the Act. ... If, therefore, the sub-section had _ stood alone in the context of an Act which imposed an obligation on a witness to answer all relevant questions, there might well be substance in the submission that its presence was consistent only with a legislative intention to abrogate the privilege. However, the sub-section does not stand alone in the State Act. The context furnishes provisions in s.10(4) and s.14(1)(1i) which protect a witness in . 9. respect both of a refusal to answer questions and to produce documents if he has a reasonable excuse. There is no sufficient indication in the Act that a witness is not entitled to that protection if the reason for his refusal is a well-grounded claim to the privilege against self-incrimination." counsel sought to make use of this passage by referring to s.58 of the Federal Court of Australia Act 1976 as (in his submission) the source of the obligation of a witness examined under s.243F(1)(e) of the Customs Act "not, without reasonable excuse... (to) refuse or fail to answer a question that he is required by the Court to answer". But this is to miss the point of the passage. It is not because the witness's obligation in fact allowed for a reasonable excuse that the joint judgment found the presence of a provision such as s.14(2) (or in the present case s.243F(3)}) exiguous, but because the context of the Act under examination included a subsection making such an allowance. There is no similar context in ss.243A to 243S of the Customs Act. Those provisions leave unanswered the question provoked by s.243F(3). To assume the draftsman intended it to be answered by reference to a section in a different Act would be to draw rather too long a bow. Nor would the availability of a reasonable excuse under s.58 (if applicable), as a ground for refusing to answer, in itself import the privilege against self-incrimination: Controlled Consultants Proprietary Limited v. Commissioner for Corporate Affairs (1985) 156 C.L.R. 385 at 392, 396. \ The decision cited by the joint judgment in Sorby''s case as affording an illustration of a statute which abrogates the } 10. privilege by necessary implication, Mortimer v. Brown, concerned an examination of directors of a company in voluntary liquidation under a section in the Queensland companies legislation. The section provided for answers to be given to such questions "as the Court thinks fit", and for the preparation of notes of the examination which might "thereafter be used in evidence in any legal proceedings" against the examinee. Kitto J. at 496 said: "But however this may be, on the question that is now before us the circumstance which I find compelling is that the evident purpose of the section, primarily even if not wholly, is to enable a suggestion of fraud or concealment of a material fact to be fully investigated by means of the public examination of certain classes of persons. Such a question in its nature must frequently involve consideration of evidence tending to incriminate individuals. To read down the wide terms of the section so as to allow a danger of self-incrimination as a valid ground for refusing to answer a question would render the provision relatively valueless in the very cases which call most loudly for investigation. By providing in sub-s .(7)(c) that notes of a= person's examination may thereafter be used in evidence in any legal proceedings against him, the section shows that the possibility of self-incrimination is contemplated as being inherent in the kind of examination , that is authorized." The relevance of this reasoning to the interpretation of s.243F needs no emphasis. Walsh J. at 499 referred to "the idea underlying those decisions (that is, the decisions concerning examinations of bankrupts), namely, that the purpose of the bankruptcy statute was to secure a full disclosure of facts in the interests of the public". (Other Statements of high ' . 11. authority to similar effect will be found in Ex parte Schofield, In re Firth [1877] 6 Ch. D. 230 at 233; and Rees v. Kratzmann (1965) 114 C.L.R. 63 at 79-80.) At 502 Walsh J. said: "Indeed, in many cases, the possibility or even the certainty that an answer would incriminate the person being examined would not itself provide a sufficient reason for disallowing the question, since questions will normally be directed to the investigation of all the relevant facts in order that it may be ascertained whether or not there has been fraud or concealment of Material facts. I think it is the intention disclosed by the section that any questions which will be of real assistance towards the fulfilment of that purpose should be answered." The applicant contends in the present case that similarly s.243F evinces an intention, in the context of ss.243B and 243E, that any 'questions which will be of real assistance in ascertaining the nature and location of the property of a defendant should be answered. The defendants submit that the authority of Mortimer v. Brown was weakened by Mitcham v. O'Toole (1977) 137 C.L.R. 150 in which the High Court refused special leave to appeal from a decision of the Full Court of the Supreme Court of Victoria, O'Toole v. Mitcham [1977] 2 A.C.L.R. 471. However the reference to Mortimer _v. Brown in Sorby's case, which I have quoted, lends no support to this suggestion. The reasoning in Mortimer v. Brown was discussed at some length, and applied, in the joint judgment of Mason A.C.J., . i Wilson and Dawson JJ. in Pyneboard Pty. Ltd. v. Trade Practices o 12. Commission (1983) 152 C.L.R. 328 at 342-3, where reference was also made to King v. McLellan [1974] V.R. 773, a decision applying similar reasoning to legislation requiring the furnishing by a driver of a motor car of a sample of his breath for analysis. At 341 the joint judgment states: "In deciding whether a statute impliedly excludes the privilege much depends on the language and character of the provision and the purpose which it is designed to achieve. The privilege will be impliedly excluded if the obligation to answer, provide 1nformation 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." The approach to the construction of a statute, in order to determine whether it impliedly excludes the privilege, which was adopted in the Pyneboard case, has been re-affirmed in two recent decisions of the High Court: Controlled Consultants Proprietary Limited v. Commissioner for Corporate Affairs (1985) 156 C.L.R. 385; and Police Service Board v. Morris (1985) 156 C.L.R. 397. In the former case at 396 Brennan J. said: "The application of the privilege in investigations carried out under statutory powers must now be taken to depend upon legislative intention as derived from the sas 13. statute, the privilege being held to apply unless the statute impliedly excludes it. The nature of the statutory power, the prescribed manner of its exercise and the purpose which its exercise is designed to achieve are the available, if uncertain, guides as to legislative intention in the absence of express provisions." I turn to the construction of s.243F in the light of these authorities. Sub-section (1) of the section provides for the making of "such orders in relation to that property as the Court considers just and, without limiting the power so conferred on the Court, (it provides) the Court may, at any time or from time to time, make an order... (e) for the examination of the defendant or another person before the Court or the Registrar of the Court (the reprint of the Customs Act as at 1 April 1985 has the word "Registry", but that 1S an error) concerning the nature and location of the property of the defendant." Sub-section (3) provides that a statement or disclosure is not admissible except in a proceeding for giving false testimony in the course of the examination, or in a proceeding for the recovery of a pecuniary penalty for the purpose only of facilitating the assessment of its amount. Sub-section (4) expands the reference to the Registrar of the Court to include a Deputy Registrar, a District Registrar and a Deputy District Registrar. It seems to me that these provisions carry the necessary implication that each of the persons mentioned is empowered to conduct the examination pursuant to the order just as the Court is empowered to direct the furnishing of information pursuant to s.243F(1)(d). That paragraph enables the Court to direct a defendant to furnish a ce i a ee ee eat Hn en mn Rae eee mm me me tm en an 14. statement setting out particulars of his property. It will be noted that there is no provision conferring any immunity in respect of the tender of such a statement in any proceeding, whether civil or criminal. It will be apparent that, in contrast to the provisions the subject of Sorby's case, these provisions do expressly contemplate the admissibility of statements, in answer to questions put in the course of the examination, which expose the defendant to penalty. For under s.243B(2) an ingredient of the penalty is the value of the benefits derived by the defendant, and the pecuniary penalty is equal to that value as assessed by the Court. An answer going to this assessment is expressly made admissible in a proceeding for recovery of a penalty. While it is true that the privilege against self-incrimination may be distinguished from the privilege against self-exposure to a penalty (see the Pyneboard case at 335-7), the privileges are closely related, and have frequently been subsumed under a single statement. In Police Service Board v. Morris, for example, at 404 Gibbs C.J. referred to "the privilege against giving answers which might tend to incriminate or expose to penalty". It seems to me that the demonstrable intention of the legislature to abrogate the privilege in relation to exposure to penalty 1s consistent with an untention to abrogate also the cognate privilege in respect of incrimination. The requirement in s.243F(1)(d), a provision closely associated with para.(e), relates to "such particulars of the . , 15. property of the defendant as the Court deems proper". This is language strictly comparable to the language interpreted by the High Court in Mortimer _v. Brown as abrogating the privilege in the context of an enquiry in the public interest into the affairs of a company in liquidation, and in Commissioner of the Australian Federal Police v. Cox (Pincus J., unreported, 24/12/86) para.(d) was given the same effect. Similar language has been relied on in some of the bankruptcy cases; it is sufficient for present purposes to refer to the recent decision Re Clyne; Ex parte Deputy Commissioner of Taxation (unreported, Jackson J., 16 September 1986) where at p.16 it is stated: "Putting to one side for a moment' the provisions of s.306A(3) of the Act, it is clear that the public examination of bankrupts under the enactments in bankruptcy has long been an instance where, without there being any reference to the exclusion of the privilege against self-incrimination (the emphasis is in the original), a statutory duty of the bankrupt to answer 'all such questions as the Court may put or allow to be put to him' has been held to carry with it an exclusion of the privilege against self-incrimination." It cannot be suggested that the provisions with which I am concerned evince any less determination on the part of the Parliament to insist upon the relevant facts being brought to light. Furthermore it seems to me that there 1s a measure of inherent protection for the defendant in the terms of the provision. Questions which may be asked are circumscribed by the requirement that they be "concerning the nature and location of . ' 16. the property of the defendant". He is not to be questioned at large. He also receives the protection, so far as it goes, of sub-s.(3) which, in the context, suggests an advertence by Parliament to the problem. At the same time, it is to be expected that his answers may quite probably be tendered in the proceedings for a penalty, and they may very well disclose matters relevant to any circumstantial evidence which may be relied on in a subsequent prosecution. These are consequences Parliament must have appreciated. The cases to which I have referred make it clear that the privilege may be abrogated without express words; it 15 a question of construction of the particular legislation. The present is a very different statutory context from that involved in Sorby's case. Legislation providing for the setting up of Royal Commissions gains no colour by reference to any particular kind of inquiry, since it must embrace any inquiry. The character and purposes of the inquiry to which s.243F relates do give colour to its language and provide a setting for its construction. The very subject of the inquiry (the property of the defendant) is likely, according to the allegations which found it, to be or to include the proceeds of crime. The inquiry forms part of an attack by Parliament upon drug trafficking, an attack which in other respects sets aside common law rights. There is, for example, the provision for ex parte orders, and that without any discretion in the Court, or at any rate any express discretion, to decline to make them, directing the Official Trustee, in certain circumstances, to take control of oo ; [ 17. all of the property of a defendant. Such an inroad upon the fundamental rights of a citizen clearly shows that these measures relate to a topic seen by Parliament as of over-riding importance. In my view the character of the provision in question and the purpose which it is designed to achieve do indicate that the privilege is abrogated, not only in respect of questions which may expose the defendant to penalty, but also in respect of questions the answers to which may incriminate him. Some brief argument was addressed to me as to whether legal professional privilege could apply in respect of questions which may be addressed to a witness, to be examined, who acted as solicitor for one of the defendants. There is no question raising this issue presently before me. It does not seem to me that any of the considerations to which I have referred, in the context of s.243F(1)(e), provides any reason to think that the legislature intended to modify the common law principles in respect of legal professional privilege. What Deane J. said of s.10 of the Crimes Act 1914 in Baker v. Campbell (1983) 153 C.L.R. 52 at 117-8 applies, mutatis mutandis, to the provisions I have to consider. He said: "As can be seen, s.10 contains no express reference to communications between a person and his legal advisers. It neither expressly includes them in, nor expressly excludes them from, the things to which it refers. There is nothing in either s.10 or in any other provision of the Act which indicates either . ' 18. that the Parliament directed its attention to the particular matter of modifying or destroying the confidentiality of relevant communications between a person and his legal advisers or that there existed a legislative intention to modify the common law principle that the confidentiality of such communications should be preserved. In accordance with the ordinary principles of construction, the section should be construed as not including, in the things which it authorizes to be inspected or seized, documents whose confidentiality would be protected in the courts of the land by the doctrine of legal professional privilege." As Dawson J. said in the same case at 132: "(T)he doctrine of legal professional privilege is, in the absence of some legislative provision restricting its application, applicable to all forms of compulsory disclosure of evidence." Wilson J. at 97 agreed with the reasons of Dawson J. See also per Murphy J. at 90. In Arno v. Forsyth (1986) 65 A.L.R. 125 at 135 Lockhart J. referred to Baker v. Campbell as having established that the doctrine of legal professional privilege "is not merely a rule of evidence, but is part of the Federal common law attaching to Federal statutory powers of search and seizure unless excluded expressly or by necessary implication". It seems to me that it is equally part of the Federal common law attaching to Federal statutory powers of inquiry by examination. It was then submitted that there is a privilege, which would be applicable upon an examination of a defendant's spouse, 19. "4 in respect of any communication made by the defendant to his spouse. Counsel for the defendants accepted, on the authority of Rumping v. Director of Public Prosecutions [1964] A.C. 814, that there is neither a \rule of the common law nor a requirement of public policy which precludes the reception in evidence of \ communications between spouses. But it was submitted that s.79 of the Judiciary Act 1903 makes applicable to the present examination the provisions of s.1l1 of the Evidence Act 1898 (NSW). Sub-section (1) of that section provides as follows: "A husband shall be competent but = not compellable to disclose communications made between him and his wife during the marriage and a wife shall be competent but not compellable to disclose communications made between her and her husband during the marriage." I did not understand counsel for the applicant to contest these propositions, though he reserved his position as regards any particular question which he might ask in examination of the defendant's wife. Clearly, many questions could be asked which would not raise any problem of the application of s.1l. But in the course of his reply Mr. Robertson raised also the question whether s.407 of the Crimes Act 1900 (NSW) applied. The opening paragraphs of that quite lengthy section read: "Every party to a civil proceeding, inquiry in which evidence is or may be given, or arbitration, and the husband or wife of such party, shall be competent to give evidence in such proceeding, inquiry, or arbitration. 20. Every accused person in a criminal proceeding, and the husband or wife of such person, shall be competent, but, save as hereinafter provided, not compellable, to give evidence in such proceeding in every Court... ." Counsel's submission was that the proceeding under $.243F is a "criminal proceeding" within the meaning of the second paragraph of s.407, not a "civil proceeding" nor an "inquiry" within the meaning of the first paragraph, and accordingly, on the basis that this section also is made applicable by s.79 of the Judiciary Act, that the spouse of a defendant is not compellable to give evidence. He relied on the proposition contained in the judgment of Deane J. in Gapes v. Commercial Bank of Australia Ltd. (1979) 38 F.L.R. 431 at 458, supported by a number of other authorities, that: "Tn the absence of express statutory direction, the question whether proceedings for a statutory penalty are criminal in character can be assimilated to the question whether the act or acts in respect of which the proceedings are brought constitute a criminal offence. eee The answer to both questions must be determined by reference to the legislative intent appearing from the provisions of the relevant statute." The argument asserted, as its foundation, that the circumstances raising a liability to a penalty under s.243B necessarily involve an offence. But although this will, perhaps, generally be so, the terms of s.243A(3) make it clear that a particular defendant may not be guilty of any offence: The Queen v. Smithers; Ex parte McMillan (1982) 152 C.L.R. 477 at 486. In 21. any case, counsel's argument cannot be accepted, having regard to the clear statement in the joint judgment of the High Court in McMillan's case at 487 to the effect that the sections with which I am concerned relate to "the imposition of a civil liability for pecuniary penalties", and that a proceeding under s.243B is "a civil action for penaities". See also's.243B(4) and (5), and cf. Naismith v. McGovern (1953) 90 C.L.R. 336; Bainbridge-Hawker v. The Minister of State for Trade and Customs for the Commonwealth of Australia (1958) 99 C.L.R. 521. Had I been of a different opinion, I should still have regarded it as premature to rule in favour of Mr. Robertson's contention since s.407 would not preclude the wife being called to give evidence though, in a criminal proceeding, she could, in the witness box, refuse to give evidence: Demirok v. The Queen (1977) 137 C.L.R. 20 at 27. The final point raised on behalf of the defendants was whether I have a discretion tor'adjourn the. examination of a particular witness pending the forthcoming trial. I am clearly of opinion that the Court does have such a discretion, and that in the exercise of it the Court should be careful to ensure that the examination, in the particular circumstances in which it is held, is not oppressive to a defendant facing serious criminal charges. Of course, circumstances may readily be imagined where it might appear that a failure to proceed promptly with an examination could jeopardise the objectives of the legislation by facilitating evasion. But it has not been suggested that anything of that kind is involved in this matter. Although S.243B(3) appears to contemplate the possibility of more or less contemporaneous proceedings of a criminal nature and for a penalty, in any particular case, especially one involving an examination of a defendant himself under s.243F(1)(e), consideration should be given to the question whether there is risk of infringing the principle stated by Deane J. in Hammond v. The Commonwealth (1982) 152 C.L.R. 188 at 206, and the Court should be ready, where appropriate, to exercise the discretion to which Morling J. referred in Clyne v. Deputy Federal Commissioner of Taxation 1985 (2) A.T.C. 4597 at 4601 (see also Re Clyne (supra, at pp.8-9)). However, I have not before me any specific application for the exercise of my discretion at this stage. In accordance with these reasons, I over-rule the general objection to any questions being asked of the defendants the answers to which may incriminate them, I rule that I shall allow any proper objection based on legal professional privilege or on s.ll of the Evidence Act 1898 (NSW), and I over-rule the general objection to the examination of the wife of a defendant. I shall hear counsel as to whether a date should now be fixed for the resumption of the examination. I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. ' ~ -- Associate Dated: 8 January, 1987. Counsel for the Applicant: Solicitors for the Applicant: 23. Counsel for the Pirst Defendant: Solicitors for the First Defendant: Counsel for the Second Defendant: Solicitors for the Second Defendant: Mr. B. Coles Director of Prosecutions Mr. T.F. Marsdens Mr. J.G. Hilton & Associates Robertson Spencer Public It 1s in this setting that the section relevant, s.243F, provides: "(1) Where the Court makes, or has made, an order (in this section referred to as the "original order') under sub-section 243E (1) directing the Official Trustee to take control of specified property, or all of the property, of a person (in this' section referred to as the ''defendant'), the Court may, at the time it makes the original order or at any subsequent time, make such orders zn relation to that property as the Court considers just and, without limiting the power so conferred on the Court, the Court may, at any time or from time to time, make an order - (d) directing the defendant to furnish to the Official Trustee, within a time specified in the order, a statement, verified by the oath or affirmation of the defendant, setting out such particulars of the property of the defendant as the Court deems proper; (e) for the examination of the defendant or another person before the Court or the Registrar of the Court concerning the nature and location of the property of the defendant; or (2) An application for an order under sub-section (1) may be made - (a) by the Official Trustee; (b) by the Minister, the Commissioner of Police or the Comptroller; (c) by the defendant; or (d) with the leave of the Court, by any other person. (3) Where the defendant or another person is presently 13. statute, the privilege being held to apply unless the statute impliedly excludes it. The nature of the statutory power, the prescribed manner of its exercise and the purpose which its exercise is designed to achieve are the available, if uncertain, guides as to legislative intention in the absence of express provisions." I turn to the construction of s.243F in the light of these authorities. Sub-section (1) of the section provides for the making of "such orders in relation to that property as the Court considers just and, without limiting the power so conferred on the Court, (it provides) the Court may, at any time or from time to time, make an order... (e) for the examination of the defendant or another person before the Court or the Registrar of the Court (the reprint of the Customs Act as at 1 April 1985 has the word "Registry", but that 1s an error) concerning the nature and location of the property of the defendant." Sub-section (3) provides that a statement or disclosure 1s not admissible except in a proceeding for giving false testimony in the course of the examination, or in a proceeding for the recovery of a pecuniary penalty for the purpose only of facilitating the assessment of 1ts amount. Sub-section (4) expands the reference to the Registrar of the Court to include a Deputy Registrar, a District Registrar and a Deputy District Registrar. It seems to me that these provisions carry the necessary implication that each of the persons mentioned is empowered to conduct the examination pursuant to the order just as the Court 1s empowered to direct the furnishing of information pursuant to s.243F(1)(d). That paragraph enables the Court to direct a defendant to furnish a Ve 14, statement setting out particulars of his property. It will be noted that there is no provision conferring any immunity in respect of the tender of such a statement in any proceeding, whether civil or criminal. It will be apparent that, in contrast to the provisions the subject of Sorby's case, these provisions do expressly contemplate the admissibility of statements, in answer to questions put in the course of the examination, which expose the defendant to penalty. For under s.243B(2) an ingredient of the penalty 1s the value of the benefits derived by the defendant, and the pecuniary penalty 1s equal to that value as assessed by the Court. An answer going to this assessment is expressly made admissible in a proceeding for recovery of a penalty. While it is true that the privilege against self-incrimination may be distinguished from the privilege against self-exposure to a penalty (see the Pyneboard case at 335-7), the privileges are closely related, and have frequently been subsumed under a single statement. In Police Service Board v. Morris, for example, at 404 Gibbs C.J. referred to "the privilege against giving answers which might tend to incriminate or expose to penalty". It seems to me that the demonstrable intention of the legislature to abrogate the privilege in relation to exposure to penalty is consistent with an intention to abrogate also the cognate privilege in respect of incrimination. The requirement in s.243F(1)({d), a provision closely associated with para.(e), relates to "such particulars of the