Last updated 15 August 2022

Investigative hearings

The Crime and Corruption Commission (CCC) conducts inquisitorial hearings to seek information in a matter under investigation. The CCC has been given wide powers so that suspects and witnesses are required to produce documents or appear for questioning and cannot claim the privilege against self-incrimination (if a claim of privilege against self-incrimination is made, no incriminating answers may be used against a witness, other than in limited circumstances).

Commission hearings are not bound by the rules of practice and procedure of any court or tribunal, and the CCC may conduct its proceedings as it considers proper and is not bound by the rules of evidence. However, s 180 of the Crime and Corruption Act 2001 (Qld) (Crime and Corruption Act) requires that hearings be conducted with as little formality and technicality as is consistent with a fair and proper consideration of the issues. Persons who are the subject of investigation can also seek judicial review of decisions by the CCC.

Addressing the presiding officer

A commissioner is referred to as Sir/Madam or Mr/Madam Commissioner.

Public or private hearings

Commission hearings are generally closed to the public unless the CCC orders otherwise (s 177 Crime and Corruption Act). The CCC may order the hearing to be open in cases where it would be unfair to a person or contrary to the public interest to close it, and in crime investigations when it would make the hearing more effective (s 177(2) Crime and Corruption Act).

Usually, matters of more public concern are held in public, and hearings that canvas matters involving alleged individual misconduct are closed because of the likelihood of prejudice occurring to any subsequent trial.

Representation

The hearing is assisted by a lawyer who conducts the examination of the witness and makes submissions regarding the law, as well as the internal procedures of the CCC. The Crime and Corruption Act permits a witness to be legally represented (s 181(1) ) and gives the presiding officer discretion to permit legal representation of a person who is not giving sworn evidence (s 181(3)).

Interpreters

The presiding officer must arrange an interpreter if they think the person is unable to understand the proceedings (s 182 Crime and Corruption Act).

Oath or affirmation

A witness to give sworn evidence before a hearing must take an oath when required by the presiding officer. The maximum penalty for refusing to take an oath or affirmation when required by a presiding officer is 200 penalty units or five years imprisonment (s 183 Crime and Corruption Act).

Production of records

A witness, required to attend before the CCC to furnish information or to produce a record or things, must furnish the information or produce the record if it is within the person’s knowledge or custody (ss 185, 188 Crime and Corruption Act). Failure to comply with such a requirement can result in a maximum penalty of 200 penalty units or five years imprisonment. In corruption investigations, production cannot be refused on the ground that it might incriminate the witness (s 188 Crime and Corruption Act).

Giving evidence

A witness attending a hearing into a crime investigation, intelligence function hearing or a witness protection function hearing cannot remain silent if required to give evidence, or fail to answer any question on the ground that to comply would tend to incriminate them, unless they have a reasonable excuse (ss 189–190 Crime and Corruption Act). The maximum penalty for failing to comply is 200 penalty units or five years imprisonment (s 190 Crime and Corruption Act). Privilege can be claimed in some circumstances (e.g. legal professional privilege). The former s 190(4) of the Crime and Corruption Act, where a participant in a criminal organisation could not be found to have a reasonable excuse based on their fear, whether genuinely held or not, was removed by operation of the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) following concerns about the personal safety of some individuals and a risk of encouraging perjury.

A witness attending a corruption investigation hearing cannot remain silent if required to give evidence, or fail to answer any question on the ground that to comply would tend to incriminate them or breach confidentiality (s 192 Crime and Corruption Act). The maximum penalty for failing to comply is 200 penalty units or five years imprisonment. However, a person is entitled to refuse to answer on the following grounds of privilege:

  • legal professional privilege
  • public interest immunity
  • parliamentary privilege.

By virtue of s 197 of the Crime and Corruption Act, it is important to object to furnishing a statement or making a disclosure on the ground it may incriminate, because only then will the evidence obtained be inadmissible against the witness in later civil, criminal or administrative proceedings. This does not apply, however, in any of the following circumstances (s 197(3) Crime and Corruption Act):

  • with the individual’s consent
  • if the proceeding is about:
    • the falsity or misleading nature of an answer, document, thing or statement mentioned in subs (1) and given or produced by the individual
    • an offence against this Act
    • a contempt of a person conducting the hearing
  • if the proceeding is a proceeding under the Criminal Proceeds Confiscation Act 2002 (Qld), other than a proceeding for the prosecution of an offence, and the answer, document, thing or statement is admissible under s 265 of that Act.

Also, the document is admissible in a civil proceeding about a right or liability conferred or imposed by the document (s 197(4) Crime and Corruption Act).

It is also critical to bear in mind that any information, document or other thing obtained as a direct or indirect consequence of the witness giving the answer or producing the document or thing is admissible as evidence in any civil, criminal or administrative proceeding (s 197(7) Crime and Corruption Act) (see also X7 v Australian Crime Commission [2013] HCA 29; R v Leach; R v Leach; Ex parte Commonwealth Director of Public Prosecution [2022] QCA 7 and PRS v Crime and Corruption Commission [2019] QCA 255).

There are two ways in which the objection to answer questions (to attract the protection of s 197 of the Crime and Corruption Act) can be approached. A witness or their representative can make a blanket objection at the commencement of the hearing. What this means is a person or their representative who is appearing on their behalf would take objection at the outset to any and all questions, the answers to which may incriminate (s 197 Crime and Corruption Act). Whether this blanket objection is accepted is within the discretion of the presiding CCC officer. Accepting a blanket objection will usually save time and minimise interruption.

If the CCC does not accept a blanket objection, it is necessary for the witness to object to answer each question that would tend to incriminate. Because it is often difficult for a tense witness to know when to claim the privilege against self-incrimination or to even discern whether an answer could be incriminating, it may be safest for an individual not given a blanket protection to preface each and every answer with the statement that ‘I object to answering that question on the grounds that it would tend to incriminate me’. The witness will still be required to answer the question, but that answer cannot not be used against them in later proceedings.

Unlike a court, witnesses and their legal representatives are not usually given access to evidence obtained by the CCC. For example, in a CCC hearing, a suspect would not be given a transcript of a conversation recorded secretly but would be questioned on their recollection of the recorded conversation in order to verify their recollection and test their truthfulness. However, the CCC must produce evidence it has acquired to a defendant in criminal proceedings.

In crime investigations and witness protection hearings, if the presiding CCC officer insists that a question must be answered or a claim of privilege is denied, the witness can seek leave to appeal the decision to the Supreme Court (s 195 Crime and Corruption Act). Section 195B of the Crime and Corruption Act similarly applies where the claim is made in confiscation-related investigations.

A person required to attend before the CCC, or who wishes to appeal a decision of the presiding officer in crime investigations, can apply to the Attorney-General for legal assistance in cases involving substantial hardship (s 205 Crime and Corruption Act).

Offences

According to the Crime and Corruption Act, a person can be charged with an offence punishable by a fine or imprisonment if that person:

  • refuses to be sworn: maximum penalty 200 penalty units or five years imprisonment (s 183)
  • fails to answer a relevant question or fails to produce a record if called as a witness: maximum penalty 200 penalty units or five years imprisonment (ss 185, 188 , 190 , 192)
  • obstructs or delays the procedures of the CCC: maximum penalty 255 penalty units or three years imprisonment (s 210)
  • injures or threatens a witness or intimidates any person: maximum penalty 255 penalty units or three years imprisonment (s 211)
  • wilfully obstructions the CCC in the exercise of its powers: maximum penalty 85 penalty units or one year imprisonment (s 215)
  • is in contempt of the CCC, which has minimum penalties (see s 199).

It is an offence to make a frivolous or vexatious complaint after being warned in relation to the same complaint (s 216 Crime and Corruption Act) and to make a wilfully false statement or produce a false document (ss 217–218 Crime and Corruption Act). The maximum penalty for such offences is 85 penalty units or one year imprisonment.

Complaints against the commission

A complaint about the handling of matters by the CCC can be made to the Parliamentary Crime and Corruption Committee. Also, a complainant can seek judicial review of CCC decisions and can seek access to information kept on the complaint by the CCC by making an application under the Right to Information Act 2009 (Qld), subject to any right to information exemptions.

An allegation of misconduct against a police officer or other public official is a serious matter. If a complaint is made to police or the CCC, and it does not receive what appears to be proper attention, the complainant should consult a private solicitor or a community legal centre.