In recent times, the application of the common law privileges against self-incrimination and self-exposure to a penalty have attracted significant interest.
In the case of Meneses & Anor v
Background
Directed OE challenged the privilege claims in the Federal Court. The primary judge determined in Directed OE's favour.
Decision of the Full Federal Court
The Full Federal Court allowed the appeal, finding that the privilege claims were valid. The decision was based upon three key findings as follows:
- the primary judge erred in directing attention to the question of whether the relevant documents were "of"
Mr Meneses or a company. The correct question, in accordance with the wording of rules 20.16 and 20.17 of the Federal Court Rules, was whether the relevant documents were in the "control" ofOE Solutions ([149]-[150]) - the primary judge erred in focussing on whether the nature of the documents themselves gave rise to a claim of privilege, rather than whether the act of production would give rise to a real and appreciable risk of self-incrimination or self-exposure to penalties. The relevant question in determining claims made under the privileges against self-incrimination and self-exposure to penalties is the effect of the act of production, not the nature of the documents themselves ([151])
-
the primary judge erred in ordering that
Mr Meneses (in addition toOE Solutions ) should personally produce the documents. It is not open to order an individual to produce documents in circumstances where that production will result in the individual's self-incrimination or self-exposure to penalties ([152]).
The Court went on to discuss the implications of the third finding above in situations where a company is run by a sole director and shareholder (i.e. in the case of "one-person" companies). The Court noted that the privileges against self-incrimination and self-exposure to penalties are only available to natural persons, not companies. Therefore,
The availability of this mechanism is important, as without it one-person companies would effectively enjoy the privileges against self-incrimination and self-exposure to penalties (by being immune from producing documents in its control) despite not being entitled to claim these privileges ([153]).
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