Do You Want to Know a Secret: Documentary Evidence and the Privilege Against Self-Incrimination

Recent years have seen a judicial reassessment of the privilege against self-incrimination and its justifications, leading to the High Court's decision in Environment Protection Authority v Caltex Refining Co Pty Ltd. that the privilege should not apply to corporations. This article considers the effect which this re-evaluation may have on the continued availability of the privilege against self-incrimination in relation to documentary evidence; in particular, business records.

Introduction [1] It is generally accepted law that the common law privilege against self-incrimination [2] applies equally to documentary evidence as to oral testimony. [3] In Pyneboard Pty Ltd v Trade Practices Commission [4] (Pyneboard) the principal that the privilege against self-incrimination applies equally to documentary evidence as to oral evidence was described by Mason ACI, Wilson and Dawson JJ as "well settled". [5]

The years since Pyneboard, however, have seen a judicial re-evaluation of the justification for the privilege against self-incrimination in Australia, [6] and in particular have seen the High Court hold, on the basis of this justification, that the privilege is no longer applicable to corporations. [7] This is consistent with the principle that, as justifications for the privilege change, "that which was the subject of privilege in one generation should not necessarily be privileged in the next." [8]

Despite the statement of Mason ACJ, Wilson and Dawson JJ in Pyneboard, the strength of the Australian authorities which support the application of the privilege to documentary evidence may be questioned.

In particular, there is no binding Australian authority [9] in which any reasoned consideration [10] of the applicability of the privilege to documentary evidence as opposed to oral evidence has been attempted. In most cases, not only the court, but also the prosecutor, have been prepared to assume that the privilege was applicable to documentary evidence. [11]

If a future prosecutor does decide to challenge the applicability of the privilege to documentary evidence, how confident can the accused be that the court will continue to allow reliance on the privilege to withhold self-incriminatory documents?

Caltex and documentary evidence In Environment Protection Authority v Caltex Refining Co Pry Ltd (Caltex), a majority of the High Court held that the respondent corporation was not entitled to rely on the privilege against self-incrimination to avoid being compelled to produce certain records in response to a statutory notice issued by the appellant statutory authority. The majority held the privilege against self-incrimination was not available at all to corporations. [12]

Justification for the privilege in Caltex The majority, consisting of Mason CJ, Toohey J., Brennan J. and McHugh J., expressed views which must now be considered to form the basis of the modern justification for the privilege against self-incrimination in Australia. [13]

Mason CJ and Toohey J framed the modern rationale for the privilege in terms of human rights, as the protection of the individual from being confronted by the "cruel trilemma of punishment for refusal to testify, punishment for truthful testimony or perjury (and the consequential possibility of punishment)". [14]

Similarly, Brennan J said that "the privilege is designed to protect human dignity. It is designed not to provide a shield against conviction but to provide a shield against conviction wrung out of the mouth of the offender." [15]

The emphasis in both of these formulations of the justification is on testimony rather than the production of documents. [16]

Documentary evidence All members of the majority quoted extensively with apparent approval [17] from the following speech of Lord Templeman in A T & T Istel v Tully [18] (A T & T Istel):

"In my opinion, the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions. Neither of these considerations applies to the present appeal. It is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves ... I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff's money." [19]

The House of Lords in AT&T Istel held that Mr. Tully was not entitled to rely on the privilege against self-incrimination to avoid being compelled to produce documents relating to allegations of fraud and breach of trust against Mr. Tully by AT&T Istel Ltd., in circumstances where the court had ordered, and the Crown Prosecution Service had agreed, that material so disclosed not be used in the criminal prosecution of Mr. Tully.

In Caltex, Mason CJ and Toohey J recognised that the justification they were relying upon did not strongly support the application of the privilege to the production of documents.

They noted that the justification as formulated by Lord Templeman "cannot apply to the compulsion by process of law to produce documents", and also observed [20] that:

"It is one thing to protect a person from testifying to guilt; it is quite another thing to protect a person from the production of documents already in existence which constitute evidence of guilt, especially documents which are in the nature of real evidence ... the protection [against the production of documents] extends well beyond the objects originally sought to be achieved by way of protecting natural persons from the abuses which necessitated the introduction of the privilege ... [documents] are in the nature of real evidence which speak for themselves as distinct from testimonial oral evidence which is brought into existence in response to an exercise of investigative power or in the course of legal proceedings. Plainly enough the case for protecting a person from compulsion to product books or documents which are in the nature of real evidence of guilt and are not testimonial character ... hence it can be argued that the privilege should not apply to the production of documents or documents of a particular class."

McHugh J argued that the respondent should not be entitled to claim privilege in respect of its documents in terms which apply equally to documents in the possession of individual as to documents in the possession of companies: [21]

"In producing such documents, the corporation is not creating evidence against itself, as would occur if an individual could be compelled to give incriminating answers. The documents already exist ... they can be obtained by search warrant. If they are relevant to an offence, they cannot be altered or destroyed because to alter or destroy them would constitute the offence of attempt to pervert the course of justice." [22]

The majority judges in Caltex have therefore formulated a justification for the privilege which has a questionable application to documentary evidence. This may provide a future court with the basis to exclude the application of the privilege to documentary evidence.

Possible future developments The majority decision in Caltex was the result of balancing the justifications for extending the privilege to corporations against the "more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available." [23]

The majority essentially decided, in the words of McHugh J. [24]that "the harm to the administration of justice resulting from allowing corporations to claim the privilege outweighs the harm in rejecting the claim."

The majority in Caltex indicated that the "availability of the privilege to corporations has a disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence." [25] It was said that the nature of a corporation, including the special elements to be proved in order to establish corporate criminality, [26] meant that documentary evidence constituted the best, [27] and perhaps the only [28] evidence of the business transactions and activities of corporations. This was the "harm to the administration of justice" referred to by McHugh J in the case of corporations.

Given that the application of the justification for the privilege to documentary evidence is tenuous, in what circumstances will a future court find that the administration of justice would also be unduly harmed by the application of the privilege to documentary evidence when the privilege is claimed by an individual?

Self-incrimination by corporate officers One instance where the administration of justice might be harmed by extending the privilege may be where an individual officer of a corporation is entitled to rely on the privilege to refuse to produce corporate records which, in addition to incriminating the corporation, tend to incriminate her or him.

In Concrete Construction Pry Ltd v Plumbers and Gasfitters Employees' Union of Australia, [29] a subpoena to produce documents was addressed to the Secretary of the Plumbers and Gasfitters Employees' Union of Australia (PGEU). Wilcox J of the Federal Court held that the Secretary could not claim the privilege in respect of documents which might incriminate the PGEU: "the privilege is not a privilege against incrimination; it is a privilege against self-incrimination." [30]

However, the Secretary also claimed the privilege against self-incrimination for himself, on the basis that the information contained in the documents which incriminated the PGEU might also indicate that he had been a party to a criminal conspiracy.

After reviewing the relevant documents, Wilcox J found that there was in fact no possibility of the publication of the information incriminating the Secretary. Wilcox J did not indicate whether he would have upheld the Secretary's claim if the documents had incriminated the Secretary, however his Honour's approach to the issue suggests that the Secretary might have been entitled to rely on his personal privilege to withhold the documents. [31]

This may be compared with the position under United States law, which would not allow an officer in the position of the Secretary to claim personal privilege in respect of documents of the corporation. In Braswell v United States [32] (Braswell), the United States Supreme Court approved the compulsion of corporate documents in his possession notwithstanding that the documents would tend to personally incriminate him.

The difference between Concrete Constructions and Braswell is the capacity in which the different officers were held to be acting in relating to each subpoena. In Concrete Constructions, the subpoena was addressed to the individual officer rather than to the corporation. On this basis, Wilcox J held that the act of the individual in producing or refusing to produce the documents was in his person capacity only. In Braswell, the courts held that the president would be acting as a representative of the corporation, rather than in a personal capacity, when delivering the corporation's documents. The president could therefore only claim privilege on behalf of the corporation (which is not available under United States law) and not on behalf of himself.

In Concrete Constructions, Wilcox J contemplated the adoption of a position similar to the United States approach in cases where the relevant subpoena is addressed to the corporation itself:

"In a case where the corporation itself is required to supply the relevant information as, for example, when the subpoena is addressed to the corporation itself . . . although the corporation must, of necessity, act through an agent, the act of the agent is the act of the corporation itself."

Thus, just as an officer acting in his individual capacity could not claim privilege on behalf of the corporation in Concrete Constructions, so an officer acting on behalf of the corporation should not be able to claim privilege for herself or himself where the notice to produce or subpoena is addressed to the corporation.

In this regard, the approach of Gray J in Master Builders Association of NSW v The Plumbers and Gasfitters Employees' Union of Australia [33] to the addressing of notices and subpoenas is instructive. In that case, Gray J considered a subpoena addressed to the "Proper Officer" to be addressed to the corporation itself. This interpretation, which is favoured by at least one leading textwriter, [34] would mean that an officer could never claim personal privilege, even where a notice or subpoena is addressed to the officer rather that the corporation. However, the precedential value of Gray J's approach is undermined because it was the result of the express agreement of the parties to the relevant case.

Individual officers of a corporation should therefore not be able to rely on their personal privilege to resist production of documents of the corporation which tend to incriminate the individual officer concerned, at least where the subpoena is specifically addressed to the corporation itself.

Records of unincorporated organisations In United States v White [35] (White), Murphy J of the United States Supreme Court said:

"The greater portion of evidence of wrongdoing by an organisation or its representatives is usually to be found in the official records and documents of that organisation. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and State laws would be impossible . . . [the privilege is] limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records."

The court held that the US equivalent of the privilege, which is enshrined as the Fifth Amendments to the United States Constitution, was inapplicable to the business records of corporations and other unincorporated "collective entities". In Caltex, Mason CJ, Toohey J and Brennan J all quoted [36] the above passage with approval.

If the High Court had adopted the United States rule in relation to corporations, [37] to what extent does it agree that the rule should extend to unincorporated organisations? In Caltex, the question was left open. However, there are indications in both judicial authorities and academic writings to suggest that the privilege may also be inapplicable to unincorporated organisations.

In cases where the Australian courts have had to deal with the extension of the privilege to unincorporated organisations, the courts have assumed that unincorporated organisations are in the same position as corporations. Thus, in Trade Practices Commission v TNT Management Pty Ltd. [38] Franki J held that "the privilege against exposure to a civil penalty is available to corporations and therefore, it seems, to an unincorporated body and its members". [39] Similarly, in Rochfort v trade Practices Commission, [40] Mason J (Wilson J in agreement) noted that "in England it has been affirmatively decided that the privilege is available to corporations and the argument in the present case has proceeded on the footing that it is available to unincorporated associations." [41]

Moreover, the justification for the privilege formulated in Caltex appears to be equally inapplicable to unincorporated organisations as to corporations. One commentator has said:

"[I]f the High Court regards the human right rationale for the privilege against self-incrimination as today the predominant rationale for the privilege then there is every reason to extend the majority decision in Caltex (that corporations cannot claim the privilege) to other collective and amorphous bodies which also cannot suffer violations of their human dignity and personal freedom." [42]

The only objection to this conclusions is that, because unincorporated organisations have no independent legal status from the individuals which constitute them, they should be treated like an individual. However, the principle emphasised in Braswell is a complete answer to this objection: an individual can only claim the privilege in her or his own right. A member of a group making a disclosure which incriminates the group does so in a representative capacity, even if the member is implicated herself or himself by virtue of the disclosure.

Just as the human right rationale does not apply to unincorporated organisations, the objections in terms of harm to the administration of justice which were raised in Caltex in relation to corporations also apply in equal measure to unincorporated organisations. The greater part of the evidence of a corporation's wrongdoing is to be found in its documents because such document are required to permit successors to the immediate human actors to reconstruct the actions of her or his predecessor. This is a corollary of the representative nature of the position of individuals within a corporation and is equally the case in unincorporated organisations.

After having accorded the human rights rationale and the significance of law enforcement as described in White such weight in Caltex, it would be incongruous for the High Court to reach any conclusion other than that the privilege is not available to unincorporated organisations.

Business records of individuals If the corporate form is not essential for disentitlement to the privilege, then could the privilege even be removed from sole traders?

Both judicial and academic opinion have pointed out [43] the implausibility of the sharp distinction between human beings and corporate bodies in this context. This is particularly the case when, after the introduction of single shareholder/director companies in Australia, individual traders can easily pass from one category to the other by simply acquiring (or winding up) a shelf company, often at a cost of less than $1,000.

If the privilege does not apply to corporate officers acting in a representative capacity on behalf of a corporation or even (as suggested above) on behalf of an unincorporated organisation, it is submitted that the privilege should also be inapplicable to the business records of sole traders. For the same reasons as discussed above in relation to unincorporated organisations, documents such as receipts and invoices would, in most cases, constitute the best or only evidence of the activities and transactions of such businesses. There is recognition of this in Caltex when Mason CJ and Toohey J quoted with evident approval Wigmore's statement that "economic crimes (as contrasted with common law crimes) are usually not been discoverable without access to business records". [44]

To what extent does this conclusion conflict with the rationale for the privilege? If, as Henry J noted in R v Seelig, [45] the original purpose of the privilege was to protect the poor, the weak and the ill-educated, the privilege may seem difficult to justify when dealing with sophisticated and intelligent businessmen surrounded by their teams of lawyers. [46]

More significantly, however, it might be considered that the removal of the privilege from business records of sole traders unduly prejudices the human rights protection which is the main justification for the privilege identified by the majority in Caltex. The answer to this concern is that the application of the privilege to the business records of sale traders protects the business, not the individual.

Regardless of the corporate or other form of the business, it is as distinguishable from its owner and operator as a corporation is distinguishable from its shareholders and employees. To varying degrees, the business has an existence independent of its owner, since it can be sold or mortgaged to a third party who can take over the conduct of the business. While the sole trader does not have limited liability, he or she can recreate many of the benefits of limited liability on a transactional basis or through insurance. [47] And, although it is true that the individual's financial circumstances may be affected by adversity suffered by her or his business, this is not more the case with sole traders than with shareholders or employees.

If the justification for the privilege has such a tenuous application to documentary evidence, and the withholding of business records causes significant harm to the administration of justice, the approach of the High Court in Caltex gives a clear basis for the removal of the privilege from business records for all individuals.

Protecting the privilege

Those concerned at the foregoing may seek to take comfort from the recent decisions of the High Court in Reid v Howard [48] (Reid).

In that case, the High Court held that the New South Wales Court of Appeal did not have the power to follow the example of the House of Lords in A T & T Istel [49] by removing the privilege in exchange for court-ordered limitations on use of the relevant material in a criminal prosecution.

Toohey, Gaudron, McHugh and Gummow JJ said:

"There is simply no scope for an exception to the privilege, other than by statute . . there is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against the peril and possibility of being convicted as a criminal. For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another . . the privilege is not to be modified or abrogated in favour of some different protection by judicial decision . . . its modification or the substitution of some different protection can effectively be achieved only by modification or the substitution of some different protection can effectively be achieved only by legislation." [50]

At first glance, this statement might be interpreted to mean that there is no further scope for a court to hold that the privilege does not apply to documentary evidence, or certain classes of documentary evidence.

In Caltex, Deane, Dawson and Gaudron JJ adopted a similar position towards the removal of the privilege from corporations. They considered [51] the majority decision to be "dictated by pragmatism rather than principle" and therefore "more appropriately a matter for the legislature rather than the courts". Is there a conflict between the majority decision in Caltex and the majority decision in Reid?

The decisions may be reconciled on the basis that the High Court majority in Caltex considered the removal of the privilege from corporations in general to be dictated by principle, but the majority in Reid considered the abrogation of the privilege in an individual case to be dictated by pragmatic considerations. Certainly, this would explain the position of Toohey J and McHugh J, who agreed with the majority decision in both cases.

The majority decision in Caltex was based on the non-applicability of the rationale for the privilege to corporations. In Reid, there was no suggestion that the rationale for the privilege did not apply to the evidence in question. Rather, Reid seems to apply where an attempt is made to satisfy the rationale by means other than the privilege, rather than in a case where the rationale itself does not support the application of the privilege.

If a court decided on the grounds discussed above that the privilege against self-incrimination did not apply to the business records of individuals, it would be on a similar basis to Caltex, namely that the rationale for the privilege no longer supported its application. In this event, Reid should not be an obstacle to the decision.

Conclusion

If there is a slippery slope leading from Caltex, then the removal of the privilege against self-incrimination in relation to documentary evidence is the next step down. The relevant principles as interpreted by the High Court majority in Caltex no longer seem to support the application of the privilege to certain documents at least. In particular, individuals should think twice before assuming that they will continue to be entitled to claim the privilege against self-incrimination with respect to their business records.

ENDNOTES


1. Thanks to Nicholas Beaumont and Suzanne McNicol for helpful comments on earlier drafts of this article. Apologies to Lennon/McCartney for the title. Opinions expressed herein do not necessarily reflect the view of Coudert Brothers, its partners or employees.

2. There is no general Australian legislative adoption of the privilege for documentary evidence, although most States have adopted the privilege by statute in relation to oral testimony; for example, Evidence Act: 1977 (Qid) (the QEA), s 10; Evidence Act 1958 (Vic). ss 29-30; Evidence Ordinance 1971 (ACT), s 57; Evidence Act 1906 (WA), ss 11-13; Evidence Act 1910 (Tas), ss 87-89. Section 128 of the Evidence Act 1995 (NSW) extends the privilege to "evidence". This article is confined to discussion of the common law position.

3. D. Byrne and J.D. Heydon, Cross on Evidence Australian Edition (looseleaf, Butterworths) 25, 065.

4. (1983) 45 ALR 609.

5. Ibid at 613.

6. See S. McNichol. "Corporations and the Privilege Against Self-Incrimination: The High Court Rules" (1994) 68 LU 1058 at 1060.

7. Environmental Protection Authority v Caltex Refining Co Pry Ltd (1993) 118 ALR 392 (Caltex) at 412.

8. Byrne and Heydon, op et n. 2 at 25 045.

9. The only Australian authority cited by Mason ACJ. Wilson and Dawson JJ in Pyneboard was R v Associated Northern Collieries (1910) 11 CLR 738 (Northern Collieries). This case actually dealt with the related, but different, privilege against self-exposure to a civil penalty and is therefore not binding in relation to the privilege against self-incrimination. Trade Practices Commission v Abbco Ice Works (1994) ATPR 41-342 at 42-470 per Black CJ, Burchett and Davies JJ. Thus, although the penalty privilege was extended to a corporation in Northern Collieries, the case was not considered by the majority in Caltex to be an obstacle to their decision relating to the privilege against self-incrimination; (1993) 118 ALR 392 at 398, 416, 436, English authorities which support the application of the privilege to documentary evidence are also not binding: Rochford v Trade Practices Commission (1983) 43 ALR 659 at 668.679.671.

10. In Caltex, McHugh J. noted that "although a number of Australian decisions in the last decade have accepted that the privilege may be claimed by a corporation, it was not until ... the present case that an Australian court has fully examined the question whether the privilege is available to a corporation" and concluded on this basis that the question remained open for consideration: (1993) 118 ALR 392 at 448-449. See also the discussion of the authorities in The Master Builders Association of NSW v The Plumbers and Gasfitters Employees' Union of Australia (1987) ATPR 40-786 at 48-574-48-577.

11. See, for example, Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs [1984] VR 137 at 152.

12. This position has now been adopted by legislation in some States: Evidence Act 1995 (NSW). s. 187: Evidence Act (Cth). s 187: see also Corporations Law, s 1316A. It has also been held that, in the absence of the privilege, there is no other rule whereby a court's processors to compel production of a corporation's documents will be withheld: Calderwood v SCI Operations Pry Ltd (1995) 130 ALR 456.

13. Australian Securities Commission v Bank Leumi Le-Isreal (1996) 14 ACLC 147 at 185.

14. (1993) 118 ALR 392 at 404.

15. Ibid at 416.

16. See also King v McKellan [1974] VR 773, where the Supreme Court of Victoria cited the following statement from Wigmore on Evidence with apparent approval: "The history of the privilege - especially the spirit of the struggle by which its establishment came about - suggests that the privilege is limited to testimonial disclosure. It was directed at the employment of legal process to extract from the person's own lips and admission of guilt, which would thus take the place of other evidence." However, see also Fisher v United States (1976) 425 US 391, where the United States Supreme Court held the act of production of documents to be testimonial for the purposes of the Fifth Amendment to the United States Constitution.

17. 16 (1993) 118 ALR 392 at 401, 405, 418, 437, 448.

18. [1993] ACT 45 at 53.

19. Lord Griffith agreed with this and went further, saying:

"I can for myself see no argument in favour of the privilege against producing a document the contents of which may go to show that the holder has committed a criminal offence. The contents of the document will speak for itself and there is no risk of the false confession which underlies the privilege against having to answer questions that may incriminate the speaker. The rule may once have been justified by the fear that without it an accused might

be tortured into production of documents but those days are surely past." (Ibid at 57.)

20. (1993) 118 ALR 392 at 408, 409.

21. Ibid at 449.

22. The High Court held in Controlled Consultants Pty Ltd v Commission for Corporate Affairs (1985) 57 ALR 751 that the privilege does not apply to the seizure of documents provided they can be proved by "independent means"; thus, where a statute provides for authorities to have a search and seizure power, the privilege should not apply to the exercise of such power: see S. McNicol, Law of Privilege (Law Book Company, 1992). pp. 207-208. This is similar to the position which has been reached in the United States: see JG Sauls, "Documents and Compulsory Self-Incrimination: Fifth Amendment Considerations" (1988) FBI Law Enforcement Bulletin (December Edition) at 17.

23. Grant v Downs (1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ.

24. (1993) 118 ALR 392 at 447.

25. Ibid at 409.

26. Ibid at 417 per Brennan, J. Criminal responsibility may generally only be attributed to a corporation where the requisite elements were performed on behalf of the company by the board of directors, the managing director or another person to whom a function of the board has been delegated: Tesco Supermarkets v Nottrass [1972] AC 153.

27. (1993) 118 ALR 392 at 409.

28. Ibid at 448.

29. (1987) 71 ALR 501.

30. See Andersen v State of Maryland (1976) 427 US 463.

31. This may be compared with Controlled Consultants Pry Limited v Commissioner for Corporate Affairs (1985) 156 CLR 385, where the High Court held that a statutory power to require production of books excluded the privilege altogether, and therefore that a company officer could not refuse to produce company records (whether on the basis of that person's personal privilege or the company's privilege). Murphy J, who decided the case on the basis that the privilege should not be available to companies, did not consider the effect of the officer's personal privilege (if any).

32. (1988) 487 US 99.

33. (1987) ATPR 40-786.

34. McNicol, op cit n 21 at 157.

35. (1944) 322 US 694 at 700.

36. (1993) 118 ALR 392 at 399, 417.

37. There are certain aspects of United States law in relation to the US constitutional privilege which would not apply in Australia. For example, the US doctrine which precludes reliance on the privilege for records required to be kept (and produced) by law (see Wilson v United States (1911) 221 US at 380), which was raised but not considered in Caltex (1993) 118 ALR 392 at 409-410), is superseded in Australia by the rule that the privilege may be abrogated by stature. Unlike the United States (see Shapiro v United States (1948) 335 US 1 at 32-33) the question of the constitutionality of such statutes does not arise in Australia.

38. (1984) 56 ALR 647.

39. Ibid at 695 (emphasis added).

40. (1982) 43 ALR 659.

41. Ibid at 669.

42. McNicol, op cit n 5 at 1060.

43. In Apple & Pear Marketing Board v Master & Sons Ltd. (1986) 1 NZLR 191. See also C Tapper, "Corporations and the Privilege Against Self-Incrimination" (1994) 110 LQR 350.

44. (1993) 118 ALR 392 at 406.

45. (1994) 4 All ER 429 at 441.

46. See J Cotton, "Company Directors and the Privilege against Self-Incrimination in Civil Proceedings: Is Use Immunity the Answer?" (1994) The Company Lawyer 15(6) 163.

47. H A I Ford and R P Austin, Ford's Principles of Corporations Law (1992) (6th ed. Butterworths), pp 402-403, 47 (1995) 69 ALJR 863.

48. (1995) 69 ALJR 863.

49. See also Busby v Thorn EMI Video Programmers Ltd [1984]. 1 NZLR 461.

50. (1995) 69 ALJR 863 at 870, 871.

51. (1993) 118 ALR 392 at 432.