Presentation Transcript

1. Seminar on Major and Organised White Collar Crime

2. Introduction 1.1 Operation Wickenby 1.2 The objectives 1.3 The issues
3. 1.3 The Issues From the summons to the witness box – preparing for the hearing Chinese walls and the right to representation Compulsory interrogation and the rules of procedural fairness The statutory and common law requirements for investigations to be fair Abrogation of the privilege against self incrimination Possible prejudice to officers and directors arising from the compulsory examination of corporations
4. 1.3 The Issues (cont.) The differences in scope and effect between “use immunity”, “use/derivative use immunity” and “transactional immunity” and the hidden traps for clients The requirements and limitations of pre-hearing disclosure Challenging the legality of references Defeating state claims to public interest immunity Undercover operations and the “perjury trap” Laying the groundwork for the exclusion of evidence at trial
5. Preparing for the hearing and determining relevance 2.1 The initial interview 2.2 Has jurisdiction been established? 2.3 The Notice to Attend 2.4 Challenging a reference 2.5 Relevance
6. Representation 3.1 Chinese Walls 3.2 Essential Questions Only 3.3 Fair Questioning 3.4 No rules of evidence 3.5 The role of counsel
7. The perjury trap 4.1 An Example 4.2 Recanting perjury
8. Witness Protection 5.1 Other protections 5.2 Whistleblowers Protection Act 1994 (Qld)
9. Privilege Against Self-Incrimination 6.1 Relevance to the investigation of Organised Crime 6.2 Statutory modification 6.2.1 The Commonwealth 6.2.2 Queensland 6.3 Search warrants distinguished 6.4 Application to corporations 6.5 Application of the privilege to company directors
10. Privilege Against Self-Incrimination (cont.) 6.6 Application of the privilege out of court 6.7 Abrogation of the privilege 6.8 Implied retention of the privilege 6.9.1 Courts discretion to limit admissibility 6.9.2 Immunity personal immunity use immunity derivative use immunity
11. Statutory provisions abrogating legal professional privilege in Queensland 7.1 Australian Crime Commission 7.2 Crime and Misconduct Commission (CMC) 7.2.1 Major crime investigation 7.2.2 Claim of privilege 7.2.3 Failure to comply 7.2.4 Spousal Privilege 7.2.5 Meaning of “Reasonable Excuse”
12. Procedural Fairness and Crime Commissions 8.1 Ainsworth’s Case 8.2 The Legal Doctrine 8.3 The Twin Pillars 8.4 When does procedural fairness apply? 8.5 Content of procedural fairness
13. Procedural Fairness and Crime Commissions (cont.) 8.5 Content of procedural fairness 8.5.1 The bias rule 8.5.2 Actual bias not required 8.5.3 Pecuniary Interest 8.5.4 Strong Personal Interest 8.5.5Statutory removal
14. Procedural Fairness and Crime Commissions (cont.) 8.5 Content of procedural fairness 8.5.6 The hearing rule 8.5.7 Statutory removal 8.5.8 Adequate opportunity to present material 8.5.9 The Queensland Experience
15. Public Interest Immunity 9.1 The Rule 9.2 A balancing test 9.3 Rationale for the Immunity 9.4 Relevance of material 9.5 Onus on party seeking secrecy