The function of the Crime and Misconduct Commission is to investigate major crime.
Major crime is defined under the Crime and Misconduct Act 2001 as being indictable crimes punishable by not less than 14 years. The Commission performs the function by gathering evidence for prosecution and also for recovering the proceeds alleged to have been obtained from major crime. Referral to the Commission only occurs if a committee set up under the Act is satisfied that the police have ineffectively investigated a major crime, that further police investigation is unlikely to be effective, and that it's in the public interest to refer the matter to the Commission. Or, that misconduct has occurred within our public service system and needs to be dealt with appropriately.
That means that a wide cross section of our community might come into contact with the Commission. Everyone from police officers or local council employees to those involved in certain motorcycle gangs or those under investigation for large scale drug offending could be brought before it - as well as anyone associated with those people.
The teeth of the Commission lie in it's abolition of the privilege against answering questions that are incriminating. Ordinarily courts cannot compel a witness to answer questions that might incriminate the witness. But at the Commission no such privilege applies. Everyone who appears must answer - no matter what. A refusal to answer may attract a penalty of up to $8500.00 or 1 year imprisonment.
Really, the only defence to refusing to answer questions is if you have a "reasonable excuse" as it is defined in the Act. The validity of this claim must be decided by a Supreme Court judge. The enticement the Commission gives you to answer is that what a witness says cannot be used against that individual in any subsequent civil or criminal proceedings. But obviously the complexities of human relationships mean that this enticement is seldom attractive.
How can a Lawyer Help?
This is where the guidance of a skilled criminal lawyer will assist the witness in deciding how best to approach awkward questions on a particular topic. Or, in determining if the reason behind a witness's refusal to answer certain questions qualifies as a "reasonable excuse", and so afford that person a defence.
Contact us today