Investigative Hearings – Crime and Corruption Commission and other agencies

Investigative hearings are commonly used by law enforcement agencies such as the Crime and Corruption Commission (CCC), and the Australian Crime Commission (ACC).

If you’ve been served with a Notice requiring your attendance at an investigative hearing, you will need legal advice concerning your position prior to hearing. Investigative hearings are unusual procedures in which witnesses are required to give evidence, usually in private, as part of a particular investigation.

There are a number of unusual features about investigative hearings that mean witnesses appearing before them should be well prepared and provided with legal advice before attending.

Gilshenan & Luton has been involved in hundreds of such hearings over many years, with unparalleled experience and expertise in this area.

What to expect at investigative hearings

Investigative hearings are conducted in rooms that look like court rooms, although are normally held in private with no on-lookers.

When your investigative hearing commences, you will be asked to take an oath or affirmation, and then the presiding officer explains to you the particular laws that relate to investigative hearings. This page covers much of that.

After that occurs, counsel assisting the hearing (the lawyer conducting the questioning on behalf of the investigating agency) will usually commence questioning you. Witnesses can be in the witness box for a matter of minutes, hours or even days. Regular breaks are usually granted upon request, including to allow you to confer with your legal representative.

The role of your lawyer

It is important before you proceed through a hearing that you obtain detailed advice on your rights, obligations and options. The role of your lawyer in the hearing is to ensure that the processes are, as far as possible, fair and in accordance with the law, and to ensure that you are properly protected by way of any claim for privilege that you may wish to make (see below).

Your lawyer will also assist you to prepare for your hearing. Usually we will be able to liaise with the counsel assisting the hearing in advance, to find out more about what lies in store for you in the investigative hearing. We will also take instructions from you as to your version of events, and assist you in ensuring that you can give your evidence in the most compelling manner possible.

Requirement to answer questions

Under the various laws which govern investigative hearings, the investigating agency can require a witness to answer questions, even if the witness does not want to. This effectively takes away the witness’ usual right of silence, and requires them to assist the investigation.

A witness in fact commits an offence if they refuse to give evidence or answer questions. Indeed, the witness commits an offence even if refusing to swear an oath on the bible or affirm that their evidence will be true and correct.

The removal of self-incrimination privilege – no right to silence

Not only are witnesses in investigative hearings required to answer questions, but they must do so even in circumstances where the answers might get them into trouble; that is, where they may incriminate themselves.

In most court cases, a witness who feels that his or her answers may tend to incriminate them, can refuse to answer specific questions. This privilege does not apply in investigate hearings. The investigating agency can require a witness to answer questions even though the answer would tend to reveal some wrongdoing on the part of witness.

There is a “trade-off” to this extraordinary power however. In circumstances where a witness does not wish to answer questions for fear of getting into trouble, if they protest about that in advance and are nonetheless then required to answer the questions, the answers given cannot then be used against the witness in any later proceedings.

Perjury

There is one significant exception to the “protection” that a witness gets from objecting to answering questions and then being directed to do so.

As explained above, the answers of the witness cannot be used directly against them. The exception to this is if the witness is charged with perjury (untruthfulness) in their answers at the hearing. If the witness is charged with the criminal offence of lying at the investigative hearing, then the answers given by the witness can be later used in an effort to prove that perjury.

Perjury is a serious offence, usually involving lengthy jail terms for those found guilty. For this reason, it is absolutely essential that witnesses in investigative hearings tell the complete truth.

Confidentiality

The vast majority of investigative hearings are conducted behind closed doors. Whilst they can be sometimes public, more often than not they are held in secret.

Not only are the public and media excluded, but non-publication orders will usually be made which prevent the witness from later revealing any of the questions asked or answers given in the investigative hearing. Sometimes even the Notice requiring a witness’ attendance at the hearing is deemed to be confidential, and can only be shown to legal advisors and the like.

The relevant laws governing investigative hearings make it a serious offence for non-publication orders to be breached.