FEDERAL COURT OF AUSTRALIA Versace v Monte [2001] FCA 1572 EVIDENCE – privilege – privilege against self-incrimination – where respondent claims privilege against self-incrimination in respect of cross-examination on topics relating to statements appearing in the first respondent's book – scope of the privilege against self-incrimination – adverse inferences – application of s 128 – where evidence may tend to prove that the first respondent has committed an offence against a law of a foreign country – whether the interests of justice require that the first respondent give evidence – where previous disclosures – waiver – where no precise or specific reference on oath by the first respondent to the topics in relation to which privilege is claimed Evidence Act 1995 (Cth) s 128 Evidence Act 1995 (NSW) s 128 Attorney-General (NT) v Maurice (1986)161 CLR 475 applied Dolan v Australian & Overseas Telecommunications Corporation (1993) 42 FCR 206 referred to Accident Insurance Mutual Holdings Ltd v McFadden [1993] 31 NSWLR 412 considered In Marriage of Atkinson (1997) 136 FLR 347 referred to Odger's Uniform Evidence Law (2000), 4th ed GIANNI VERSACE SPA, SANTO VERSACE, DONATELLA VERSACE v FRANK MONTE aka FRANCOIS FERDINAND MONTENERI and ARKITUDE HOLDINGS PTY LIMITED N 1184 of 2001 TAMBERLIN J SYDNEY 6 NOVEMBER 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1184 OF 2001 BETWEEN: GIANNI VERSACE SPA FIRST APPLICANT SANTO VERSACE SECOND APPLICANT DONATELLA VERSACE THIRD APPLICANT AND: FRANK MONTE aka FRANCOIS FERDINAND MONTENERI FIRST RESPONDENT ARKITUDE HOLDINGS PTY LIMITED (ACN 096 646 016) SECOND RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 6 NOVEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The first respondent is not required to give evidence in relation to the two matters outlined in the Reasons for Decision. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1184 OF 2001 BETWEEN: GIANNI VERSACE SPA FIRST APPLICANT SANTO VERSACE SECOND APPLICANT DONATELLA VERSACE THIRD APPLICANT AND: FRANK MONTE aka FRANCOIS FERDINAND MONTENERI FIRST RESPONDENT ARKITUDE HOLDINGS PTY LIMITED (ACN 096 646 016) SECOND RESPONDENT JUDGE: TAMBERLIN J DATE: 6 NOVEMBER 2001 PLACE: SYDNEY REASONS FOR DECISION 1 A question has arisen in the course of the hearing as to whether the first respondent ("Mr Monte") is entitled to invoke the privilege against self-incrimination in respect of cross-examination by the applicants' counsel on two topics. The two topics relate to statements appearing in Mr Monte's book entitled "The Spying Game" ("Exhibit A"). They concern assertions appearing on pages 15 ff and 32 ff of the book relating to, firstly, an alleged payment of a large sum of money to kill a wealthy New York banker, apparently made in Australia, and secondly, conduct engaged in by Mr Monte and his colleagues in allegedly bribing hotel staff, entering hotel rooms in Rome and planting listening devices in those rooms. 2 The first incident, recounted in relation to the wealthy New York banker, was apparently made about thirty years ago and, so far as it is possible to tell from the book, the second group of incidents, concerning the bugging of hotel rooms, occurred some time during or after 1973. 3 Mr Monte has objected to answering questions on oath relating to these matters. He has indicated that he objects to answering questions concerning the first and second matters on the ground of possible self-incrimination. The applicants submit that cross-examination directed towards securing answers on oath in relation to these matters is not within the privilege enacted in s 128 of the Evidence Act 1995 (Cth) or the corresponding New South Wales Act. 4 Section 128 reads as follows: "128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country; or (b) is liable to a civil penalty. (2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness: (a) that he or she need not give the evidence; and (b) that, if he or she gives the evidence, the court will give a certificate under this section; and (c) of the effect of such a certificate. (3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence. (4) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled; and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (5) If the court is satisfied that: (a) the evidence concerned may tend to prove that the witness has committed an offence against or arsing under, or is liable to a civil penalty under, an Australian law; and (b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and (c) the interests of justice require that the witness gives the evidence; the court may require the witness to give the evidence. … (7) In any proceeding in [an Australian – Cth] [a NSW – NSW] court: (a) evidence given by a person in respect of which a certificate under this section has been given; and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence; cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. 5 It will be noted that subs (2) is "[s]ubject to subsection (5)". The latter subsection empowers the Court, if satisfied that three conditions are fulfilled, to exercise a discretion as to whether the Court will require the witness to give evidence on that matter. 6 The privilege against self incrimination at common law is so fundamental that, under the common law, it was not open to a Court to draw adverse inferences from the fact that privilege was claimed. Although s 128(1) contains no prohibition on the drawing of an adverse inference, I am satisfied that such a principle continues to be applicable to a claim made under that statutory provision. In its report on s 128(1), the Australian Law Reform Commission stated: "No adverse inference should be drawn from the fact that privilege is claimed. Under existing law, no adverse inference should be drawn where a person claims a privilege. It is not thought to be necessary, therefore, expressly to forbid the drawing of adverse inferences." (ALRC 26, Vol 1 at [862]) 7 Traditional common law rights are not to be abolished or cut down otherwise than by clear and express statutory provisions, nor should they be narrowly construed or artificially confined: Attorney-General (NT) v Maurice (1986)161 CLR 475 at 491, per Deane J. That case concerned legal professional privilege but the basic principle expressed by his Honour is equally applicable to the present circumstances. 8 As to the common law prohibiting the drawing of an adverse inference from the claim of privilege against self incrimination, see the cases and authorities cited by Spender J in Dolan v Australian & Overseas Telecommunications Corporation (1993) 42 FCR 206 at 222-216. 9 The principles relating to waiver are set out in Accident Insurance Mutual Holdings Ltd v McFadden [1993] 31 NSWLR 412 at 423-424. Although the President dissented in that case, it is clear that the principles there discussed set out the fundamental nature and breadth of the principles at common law against obliging a person to incriminate himself or herself by their own sworn evidence. 10 There is a helpful examination of the operation of s 128 by Lindenmayer J, in the Full Family Court judgment In Marriage of Atkinson (1997) 136 FLR 347, in which the relevant principles are canvassed. See also Odger's Uniform Evidence Law (2000), 4th ed at 328-335. 11 I am not satisfied that two of the conditions in s 128(5) are fulfilled. First, the evidence sought to be elicited, if answered in a particular way, would tend to prove that the witness has committed an offence against a law of a foreign country. The terms of the foreign law have not been proven in evidence as a question of fact. In my view, however, it is highly likely having regard to experience and common sense that the entry into an agreement to kill someone or illegally enter hotel rooms and place listening devices could amount to an offence against the law of the foreign country; namely, in the first case, the law of the United States and, in the second case, the law of Italy. For this reason alone, s 128(5) does not apply. In addition, I do not consider that the interests of justice require that the applicant give evidence on these matters. Both incidents took place more than twenty-five years ago and they are remote both in time and place in relation to the circumstances concerning the present hearing and the allegations made against Gianni Versace SpA and members of the Versace family. Moreover, insofar as any submissions may be sought to be based on Mr Monte's credit in relation to these distant matters, the Court will give appropriate weight to these submissions in light of all the other evidence. I therefore do not consider that the interests of justice require the witness to give the evidence. Furthermore, having regard to the deeply entrenched nature and importance of the privilege against self-incrimination and the fact that there is presently no sworn specific detailed evidence given by Mr Monte in relation to these two matters, I am not prepared to exercise any residual discretion in order to require the giving of evidence. 12 It is then necessary to consider the terms of s 128(2). For the applicants, it is said that there are no reasonable grounds for the objection in view of previous disclosures apparently made by Mr Monte in an article in "The Australian" and in other publications over the past few years. It is submitted that this material is in the public domain and, furthermore, that Mr Monte has asserted, on oath, the correctness of statements appearing in his book. However, none of the previous alleged statements by Mr Monte were on oath in relation to these specific matters and I consider that the prior publications do not preclude the existence of reasonable grounds for objection on the part of Mr Monte. Accordingly, I consider that the provisions of subs (2) apply. 13 In addition, I do not consider that there has been a waiver by Mr Monte of the privilege against self incrimination in this matter by reason of statements made to the media and in other communications by him over the past few years. I am not satisfied that there is any precise or detailed specific reference on oath by Mr Monte in relation to these matters which is capable of giving rise to a waiver. 14 Accordingly, in relation to each of the two matters, I find that Mr Monte is not required to give evidence. In accordance with the requirements set out in s 128(2), I inform Mr Monte that he need not give evidence in relation to these matters if he considers that any answers given by him would tend to prove that he has committed an offence against Australian law or the law of a foreign country. However, if he chooses to give evidence in relation to these matters, the Court will give him a certificate under s 128 in respect of the evidence. The effect of that is that any evidence given by Mr Monte in respect of which a certificate under s 128 has been given, and evidence of any information, document or thing obtained as a direct or indirect consequence of Mr Monte having given evidence, cannot be used against him. This does not apply to a criminal proceeding in respect of the falsity of that evidence. It is then a matter for Mr Monte to decide whether he wishes to give the evidence or not. I certify that the preceding (14) fourteen numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 14 November 2001 Counsel for the Applicant: W H Nicholas R Cobden Solicitor for the Applicant: Baker & McKenzie Counsel for the Respondent: C Evatt G Hanson Solicitor for the Respondent: Horowitz & Bilinsky Date of Hearing: 5 November 2001 Date of Judgment: 6 November 2001