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In many cases you are unable to discuss your appearance before the commission with anyone except a lawyer. For people who have never been in trouble with the police they can find this time very difficult.
The purpose of this page is to try and explain what is likely to happen at the commission, what you must do and the penalties for not complying.
The NSW Crime Commission, Australian Crime Commission, ICAC, a Royal Commission or Police integrity commission all have the power to summon you to give evidence relating to their investigation. If you refuse to attend, a warrant for your arrest may be issued. Once arrested, a judge of the Federal or Supreme Court will most likely refuse you bail to ensure you attend the Commission. Bail will be granted if the judge believes the conditions imposed will ensure your appearance before the Commission. These conditions can include security (money) and reporting to the police on certain days.
However, if you are arrested for failing to attend an ICAC or Police Integrity Commission you will be brought promptly before that Commission after being arrested. You will be detained in prison until the Commissioner orders your release.
The penalties for your failure to attend a Commission differ according to the Commission you are before. Each Commission’s penalties for failing to attend as a witness are:
All the Commissions mentioned will require you to answer all questions asked and provide all documents requested. Even if the information is self incriminating, you must answer the questions and produce the documents.
In regards to a Royal Commission or the Police Integrity Commission, you may have a defence to not producing a document if it can be shown that the document(s) are not relevant to the inquiry.
The penalties for failing to answer questions and/or provide documents to a Commission differ according to each Commission. Each Commission’s penalties for failing to provide answers/documents are:
It is also an offence to lie to the Commission, or give misleading evidence. The penalties are:
Each Commission's examination or hearing is slightly different in its structure. You are always required to take an oath or affirmation to tell the truth. In all examinations or hearings you are also required to answer all questions asked of you and provide all documents or other things required. You are required to answer questions and provide documents or things even if they are self incriminating. The penalties for failing to do any of these are detailed above.
All Commissions require witnesses to answer all questions or provide documents even if they are self incriminating. Self incriminating evidence is not admissible against the individual in civil or criminal proceedings, provided an objection is raised before providing the evidence. If an objection is taken the only circumstance the evidence is allowed to be used is in that current Commission investigation/hearing, and any proceedings relating to contempt of the Commission.
While you cannot have the evidence you provide to the Commission used against you, it can be used to find other evidence to develop a prosecution case against you.
In all the Commissions, you have a right to have a lawyer represent you. Both those being investigated and individuals summoned as witnesses are allowed to have legal representation. Having a lawyer present is important as those involved in the examination or hearing are not independent of the investigation, like a Magistrate or Judge is. The individuals questioning witnesses are usually the ones who make the final decision about the inquiry. As such, they are very interested in gaining evidence from you to help them.
It is important to have an experienced lawyer present as they will know how to best protect your interests. This will include objecting to questions that are offensive or misleading, and objecting to self incriminating evidence so that it may not be used against you later in court.
You are not allowed to publish or release evidence provided to any of the Commissions. This includes witness answers, documents or other things provided to the Commission, anything that could identify a witness or their location and that a person was a witness. The penalties for publishing any of these are:
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.
Contact Armstrong Legal:
Sydney: 02 9261 4555