By: Georgie Austin, Jacquie Goodwin, Blake Pappas, and Rhyse Collins

At a glance

  • In one of three recent judgments from the Victorian Supreme Court concerning ‘preliminary evidential issues’ surrounding Tony Mokbel’s appeal against conviction, Her Honour Fullerton J held that the ‘use immunity’ contained within s 40(1) of the Inquiries Act 2014 (Vic) applies so that any answer, information, document or other thing given or produced by a person to a Royal Commission, cannot then be adduced or used against that person in proceedings that are brought against them that would or could adversely impact their legal rights.
  • The decision confirms that the scope of the immunity in s 40(1) does not apply to protect witnesses giving evidence in a proceeding brought by another party.


On 9 May 2022, under s 319A of the Criminal Procedure Act 2009 (Vic), the Victorian Supreme Court of Appeal referred a number of ‘referral questions’ to the Trial Division of the Supreme Court of Victoria. In answers filed to those questions, Mr Mokbel identified several ‘preliminary evidential issues’. One of those issues, namely the operation of s 40 of the Inquiries Act, was the subject of this judgment. Section 40 of the Inquiries Act states as follows:

40 Admissibility of answers, information, documents and other things

  1. Any answer, information, document or other thing given or produced to a Royal Commission by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—
    (a) an offence against this Act; or
    (b) an offence against section 254 or 314 of the Crimes Act 1958 in relation to the Royal Commission.
  2. Subsection (1) does not apply to a document or other thing if it was obtained, or could have been obtained, independently of its production to the Royal Commission, either before or after its production, by the person seeking to tender it in evidence, or otherwise to use it, in the other proceedings.
  3. In this section— other proceedings means criminal, civil or administrative proceedings before a court, tribunal or person acting judicially or disciplinary proceedings, including proceedings that were pending when the answer, information, document or other thing was given or produced to the Royal Commission.


What was the scope of the immunity contained within s 40(1) of the Inquiries Act?


On behalf of the Director of Public Prosecutions (DPP), it was submitted the effect that Parliament intended was that the immunity afforded by s 40 was an absolute prohibition against the use of evidence given by witnesses before Royal Commissions in any proceedings caught by s 40(3), irrespective of whether the civil or criminal liability of that witness was in issue. In other words, the DPP contended that evidence provided by a person to a Royal Commission could not be adduced or used in subsequent proceedings where the person was called as a witness (but was not themselves a party to the proceedings).

Conversely, it was submitted on behalf of Mr Mokbel that s 40(1) of the Inquiries Act merely prevented the admission or use of evidence, given by a person to a Royal Commission, in subsequent proceedings which would expose that person’s legal liability in criminal or civil proceedings brought against them.


Fullerton J preferred the construction put forward by Mr Mokbel.

In making her decision, Fullerton J deemed the construction put forward by the DPP did not promote the underlying purpose or object of the Inquiries Act, which, in her Honour’s view, was ‘a recognition of the demonstrable public interest in a Royal Commission being able to fully investigate matters of community concern on the best available information’.

Her Honour considered that a consequence of the DPP’s proposed construction would be to allow a person to give deliberately false evidence in proceedings in contradiction to what they had previously put on the public record without the risk of contradiction or exposure to a charge of perjury, which would potentially undermine the administration of criminal justice.

Her Honour also found that the DPP’s proposed construction did not align with the Act’s legislative history.1

Lastly, Her Honour observed that ss 80(1)-(3) and 112(1)-(3) of the Inquiries Act reproduce s 40, but for Boards of Inquiry and Formal Reviews, respectively, and that she accepted that the same meaning should be given to the operative words in each provision.


The impact of Her Honour’s judgment is that witnesses who are compelled to appear and produce evidence to Royal Commissions, Boards of Inquiry, or Formal Reviews will not be able to rely on the ‘use immunity’ contained within s 40 of the Inquiries Act if they are required to appear at proceedings which do not otherwise have an ability to affect their legal liability. The consequence of this is that parties to civil proceedings which concern issues subject to a Royal Commission2 or similar inquisitorial process3 will need to be mindful of what potential witnesses have previously stated to such processes.

[1] On this point, Fullerton J took into account the judgment of J Forrest J in Matthews v SPI Electricity Pty Ltd (Ruling No 15) [2013] VSC 112, which itself considered the statutory precursor to s 40, as well as the Explanatory Memorandum and Compatibility Statement that accompanied the Bill.

[2] E.g. Royal Commission into Institutional Responses to Child Sex Abuse.

[3] E.g. Victorian Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations.