07 July 2012


Breach of the Crimes Act? The SMH reports that Peter Slipper - the deliciously retro sometime Speaker in the Australian House of Representatives - wants to refer former aide James Ashby to the Australian Federal Police -
for investigation into whether he committed a criminal offence when he sent copies of the Speaker's diary to a former Howard government minister, Mal Brough, and the News Ltd journalist Steve Lewis. 
In a letter to Mr Ashby, Mr Slipper's lawyers suggested the former media adviser could have breached sections of the Commonwealth Crimes Act, which prohibits public servants from publishing or communicating internal documents without authorisation. The offence carries a maximum two years' jail. 
The letter, written on June 28, also suggests Mr Ashby could be prosecuted for participating in a conspiracy with Mr Brough, Lewis, and another Slipper aide, Karen Doane. Further, he may have committed the offence of causing harm to a public official under the Commonwealth Criminal Code. That offence carries a maximum 10 years' jail.
Ashby is suing Slipper and the Commonwealth, with claims that Slipper made unwelcome advances and sent him sexually suggestive text messages. Slipper and the Commonwealth allege the litigation is intended to ''vilify'' Slipper and ''destroy or seriously damage'' his reputation. They are seeking an order that proceedings be stopped as an abuse of process.

Ashby in response has referred to a right to claim a privilege against self-incrimination, given that he has been accused of serious criminal offences. The Commonwealth and Slipper argue Ashby should be forced to at least address the areas that did not raise a risk of self-incrimination.

Rares J has reportedly agreed that Ashby could not be forced to incriminate himself and excused him from putting on any evidence or revealing his defence until the case against him had been presented in full.

In the UK the Supreme Court in Phillips (Respondent) v Mulcaire (Appellant) [2012] UKSC 28 [PDF] has considered confidentiality, intellectual property and the privilege against self-incrimination.

The appellant Glenn Mulcaire had pleaded guilty in 2007 to offences regarding unauthorised access to voicemail messages (notably that of members of the royal household) as part of what's now often dubbed the News of the World phone hacking affair, discussed in Dial M for Murdoch (London: Allen Lane 2012) by Tom Watson &Martin Hickman. Mulcaire and News subsequently faced civil claims by individuals who alleged that messages on their mobile phones had been unlawfully intercepted. Respondent Nicola Phillips, in proceedings against News regarding messages left by clients on her mobile, argued that the messages on her mobile included
factual information, some of which is private information and some of which is commercially confidential information, including that relating to her clients’ personal lives and relationships, health, finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans
Phillips later applied to add Mulcaire as a defendant and for an order that he disclose the identity of the person instructing him to intercept the messages. Mulcaire opposed the order for disclosure arguiing that he could not be required to disclose that information as to do so would tend to expose him to prosecution. Phillips contested that argument, relying on the Senior Courts Act 1981 s 72 for excluding the privilege. That section applies to, among others, proceedings for infringement of rights pertaining to any intellectual property and, when it applies, it excludes the privilege if the offence to which the person would tend to be exposed is a related offence. The High Court and Court of Appeal held that Mulcaire could not rely on the privilege as both of those conditions were made out. Mulcaire was accordingly ordered to provide the requested information.

On appeal the Supreme Court considered whether -
  • information left in voicemail messages on Ms Phillips’s mobile is “technical or commercial information” within the definition of “intellectual property” such that the proceedings are “for infringement of rights pertaining to any intellectual property”; and 
  • on the footing that Mr Mulcaire would expose himself to a charge of conspiracy in providing the information ordered, such proceedings would be for a “related offence” within the meaning of s.72(5)
The Court's explanation of the leading judgment indicates that
the definition in s.72(5) contains the words “technical or commercial information”. The meaning of those words must be something in which a civil claimant has rights capable of being infringed. The fact that technical and commercial information ought not, strictly speaking, to be described as property cannot prevail over the clear statutory language. Whether or not confidential information can only loosely, or metaphorically, be described as property is simply irrelevant. Not all technical or commercial information is confidential. Conversely a secret about a person’s private life is not naturally described in normal usage as technical or commercial, even if it could be turned to financial advantage by disclosing it, in breach of confidence, to the media. Purely personal information is not “other intellectual property” within the meaning of s.72(5). The purpose of s.72 was to prevent remedies against commercial piracy from being frustrated, not to cover the whole of the law of confidence. While there may be commercial value in personal information and this may lead to some difficult borderline cases, it is not a reason for adopting an unnatural construction of the definition. On the facts pleaded in this appeal there is no great difficulty as to “mixed messages”, where some of the information is commercial and some is not. Ms Phillips’s pleading is to the effect that the voicemail messages left by her clients contained commercially confidential information. There is no reason to suppose that the commercial information was not significant. 
There must be a sufficient connection between the subject-matter of the claimant’s civil proceedings and the offence with which the defendant has a reasonable apprehension of being charged. Pursuant to s.72(5) the offence must be committed by or in the course of the infringement to which the proceedings relate unless the offence involves fraud or dishonesty, in which case a looser connection is sufficient. It is well established that conspiracy is a continuing offence. While the offence is committed as soon as the unlawful agreement is made, the conspiracy continues until the point when the agreement is terminated by completion, abandonment or frustration. If Mr Mulcaire conspired to intercept messages on mobile phones, an offence was committed when the unlawful agreement was made. But the offence continued so long as the agreement was being performed. Every interception pursuant to the unlawful agreement would be in the course of the offence.