If you receive a summons to a Royal Commission and you do not attend, a warrant may issue for your arrest.
Royal Commissions have a number of coercive powers over and above those of ordinary Courts. This means that they can have the ability to force someone to do something. Those powers include:
- the power to summons any person whose evidence is material to the inquiry and
penalise for non-attendance or refusal to give evidence;
- the power to examine a person under oath;
- the power to exclude the public from hearings in certain circumstances;
- the power to issue search warrants.
Obligation to Answer Questions
The major power of a Royal Commission is that it can can compel you to give evidence, although that evidence may tend to implicate you in a crime. You must answer any questions you are asked, even if that information discloses your involvement in criminal behaviour.
The privilege against self-incrimination does not apply in Royal Commissions, however, there are some exceptions. Generally, your testimony cannot be used against you in subsequent proceedings.
s 6A of the Royal Commissions Act 1902 (Cth) states that it is not a justification to refuse or fail to produce a document or to refuse to answer a question on the basis that it might tend to incriminate you.
There are exceptions to this if::
- the production or answer might tend to incriminate the person in relation to an offence; and
- the person has been charged with that offence; and
- the charge has not been finally dealt with by a court or otherwise disposed of.
Further, it states under s 6DD of that Act that evidence or documents given before the Royal Commission are not admissible in any Court, except for offences against the Royal Commission.
While at a state level, in Victoria, you are not excused from providing information; producing a document or giving evidence on the ground that it may tend to incriminate you. Section 19C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).
As a safe-guard against self-incrimination, any information provided in examination before a Royal Commission may not be admissible against you in future criminal or civil proceedings. This does not, however, prevent the authorities from using the information provided to investigate matters to use against you in future proceedings.
What Should I Do?
if you have received a letter from the Royal Commission, you should contact a lawyer immediately and discuss the practicalities of giving evidence and how this may impact you.
It is very important that you have a discussion with a solicitor before speaking with anyone else, a lawyer will help you determine the best way to express your version of events clearly. Having a lawyer present with you at the Royal Commission will ensure you have practical assistance and advice.
There is no limit to the amount of times you may be brought before a Royal Commission. Often the first appearance will connect a person to an untruth by asking questions about an event or occasion. Their account will not be challenged and they will be sent away, only to be brought back at a different time and confronted by the lies. It is an offence to lie or be in contempt of the Commission and the penalties are often more severe than a person would face if they had answered all questions truthfully from the start.
If further evidence challenges the person’s account or a new witness comes forward, then that person may be called upon to appear before the Commission again.
If you are appearing before a Royal Commission, then you may use it as an opportunity to tell your narrative of events. It is understandable that you would want to explain the context and circumstances of what you are being questioned about. Your lawyer will discuss with you whether you should provide any further documentation to the Royal Commission and whether or not this would be beneficial to you.
To properly prepare for a Royal Commission, you really need to engage your lawyer early on. Your lawyer should have extensive experience appearing at coercive hearings and Royal Commissions. Your lawyer will discuss with whether it is necessary to present your own evidence and assist you in establishing the context surrounding the event in question. There may also be elements of your evidence that you feel are not significant, but may have an impact on the evidence you present. This kind of groundwork should be conducted prior to appearing, as a Royal Commission appearance can be a stressful experience if you are not suitably prepared.
Most Royal Commission hearings will be in public, however, in some circumstances, private sessions may be held to protect vulnerable witnesses or sensitive information. For instance, at the Royal Commission into Institutional Responses to Child Sexual Abuse, only persons holding the private session, authorised by a Commissioner are to be present during a private session.
You will not be granted a private hearing to save your reputation or to assuage your feelings by appearing at a public session. The essence of a Royal Commission is the public hearing of evidence and findings. The Royal Commission into Institutional Responses to Child Sexual Abuse has made private sessions readily available, obviously to protect those coming forward with evidence.
The findings by a Royal Commission may be used by the Commission to make a range of recommendations for legislative and policy reform, however any adverse findings may result in the Royal Commission referring matters to the Director of Public Prosecutions, followed by criminal prosecutions.
The Royal Commission itself is not a criminal trial, however it’s findings may lead to charges being laid. This is the main area of concern for anyone appearing before a Royal commission, and although, ultimately, charges might not be laid by the Director of Public Prosecutions, it may still be a daunting and stressful experience.