Privilege against self-incrimination for companies and their directors

In the recent decision of WA v Galati [No 3] [2017] WASC 15, Justice Tottle has considered an interesting argument about the nature of penalty privilege, perhaps better known as the privilege against self-incrimination.

The matter arose in proceedings where the plaintiff was prosecuting what it alleged to be a criminal contempt of court by both a company and its director.

It now seems established that a company is not entitled to claim penalty privilege. A natural person facing an allegation of this nature clearly is.

The short point that his Honour was called upon to consider was whether the company would be allowed to rely in its own defence on any evidence the director chose to give after the prosecution closed its case. The simplicity of the question belies the complexity of the answer. There is no clear authority on the question. ((At [30].))

His Honour ruled that the company would be permitted to rely on such evidence. As His Honour noted, this ruling is consistent with the “the general position that once evidence is admitted in a proceeding it is admitted for all purposes subject to the operation of any exclusionary or limiting principle”. ((See judgment at [27] and the authorities there cited.))

The prosecution had argued that the company should only be permitted to rely on evidence given by the director if the evidence was such that it could only be given by the director. That is the prosecution contended that if the evidence could also have been given by someone else, and the company chose not to adduce evidence from that person before the prosecution closed its case, the company should be barred from relying upon the evidence so given by the director. His Honour appeared to place considerable weight ((At [29].)) on the practical difficulties entailed with that approach. He concluded “There is a considerable danger that the hearing would be bedevilled by the necessity to resolve collateral issues as to whether particular evidence could have been adduced from someone other than Mr Galati.”

His Honour also held that his ruling did not amount to allowing the company to ignore the Court’s programming orders for the filing of its evidence in advance of the trial. ((At 28)) It would not be accurate to characterise evidence given by the director as evidence adduced by the company.