A v Maughan

[2016] WASCA 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   A -v- MAUGHAN [2016] WASCA 128

CORAM:   MARTIN CJ

McLURE P
CORBOY J

HEARD:   17 DECEMBER 2015; ON THE PAPERS:  26 FEBRUARY 2016, 29 MARCH 2016, 22 APRIL 2016, 11 MAY 2016

DELIVERED          :   15 JULY 2016

FILE NO/S:   CACV 123 of 2015

BETWEEN:   A

Applicant

AND

HIS HONOUR MAGISTRATE ANDREW MAUGHAN
First Respondent

SUSAN JANE BAKER
Second Respondent

CORRUPTION AND CRIME COMMISSION (WA)
Third Respondent

Catchwords:

Statutory interpretation - Principle of legality - Corruption and Crime Commission Act 2003 (WA) - Where Corruption and Crime Commission conducted investigation into alleged misconduct of police officers including applicant - Where Corruption and Crime Commission summonsed applicant for compulsory examination in public - Where applicant subsequently charged with offences - Whether prosecution access to transcript of applicant's compulsory examination altered accusatorial nature of criminal justice system thereby giving rise to an abuse of process

Statutory interpretation - Principle of legality - Whether Corruption and Crime Commission Act 2003 (WA) authorised prosecution access to transcript of applicant's compulsory examination

Statutory interpretation - Whether officer of Corruption and Crime Commission authorised to commence prosecutions against applicant

Court procedure and practice - Suppression orders - Principle of open justice - Prejudice to proper administration of justice - Whether existing suppression orders should be revoked

Words and phrases - 'Principle of legality', 'fundamental principle', 'companion principle', 'privilege against self-incrimination', 'abuse of process', 'principle of open justice'

Legislation:

Anti-Corruption Commission Act 1988 (WA)
Australian Crime Commission Act 2002 (Cth)
Australian Securities and Investments Commission Act 2001 (Cth), s 19
Corruption and Crime Commission Act 2003 (WA), s 3, s 4, s 16, s 18, s 25, s 33, s 43, s 96, s 137, s 139, s 140, s 141, s 145, s 151, s 152, s 159, s 160, s 163, s 184
Corruption and Crime Commission Amendment (Misconduct) Act 2014 (WA), s 9, s 10
Corruption, Crime and Misconduct Act 2003 (WA), s 18
Crime and Corruption Act 2001 (Qld)
Crime Commission Act 2012 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Criminal Code (WA), s 1, s 313, s 317
Criminal Investigation Act 2006 (WA), s 115
Criminal Procedure Act 1986 (NSW), s 14A
Criminal Procedure Act 2004 (WA), s 3, s 20, s 23, s 35, s 45, s 61, s 76, s 95, sch 1 cl 3
Evidence Act 1906 (WA), s 21, s 145
Health Act 1911 (WA)
Independent Broad-based Anti-corruption Commission Act 2011 (Vic), s 8, s 41, s 144, s 190
Independent Commission Against Corruption Act 1988 (NSW)
Independent Commissioner Against Corruption Act 2012 (SA)
Integrity Commission Act 2009 (Tas)
Law Enforcement Integrity Commissioner Act 2006 (Cth)
Magistrates Court Act 2004 (WA), s 36
New South Wales Crime Commission Act 1985 (NSW), s 13
Police Act 1892 (WA), s 35, s 36
Police Integrity Commission Act 1996 (NSW)
Rules of the Supreme Court 1971 (WA), O 56A r 3

Result:

Application granted in part
Prosecution notices issued against the applicant and proceedings commenced against the applicant in the Magistrates Court quashed

Category:    A

Representation:

Counsel:

Applicant:     Ms K A Vernon & Mr D Jones

First Respondent           :     No appearance

Second Respondent       :     Mr P Quinlan SC & Ms A E Bartlett

Third Respondent         :     Mr P Quinlan SC & Ms A E Bartlett

Solicitors:

Applicant:     Darren Jones

First Respondent           :     No appearance

Second Respondent       :     Corruption and Crime Commission (WA)

Third Respondent         :     Corruption and Crime Commission (WA)

Case(s) referred to in judgment(s):

A v Corruption and Crime Commissioner [2013] WASCA 288

Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321

Bartlett v The Queen [No 10] [2014] WASC 277

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 89 ALJR 622

Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465

Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196

Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Potter v Minahan (1908) 7 CLR 277

Prisoners Review Board v Freeman [No 2] [2010] WASCA 167

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13

R v Catena [No 3] [2013] WASC 97

R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8

R v Jacobsen [No 4] [2014] VSC 508

R v OC [2015] NSWCCA 212

Rayney v AW [2009] WASCA 203

Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172

Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357

Re Roger Macknay QC; Ex parte A [2013] WASC 243

Russell v Russell (1976) 134 CLR 495

Russell v The State of Western Australia [2011] WASCA 246

Sorby v The Commonwealth (1983) 152 CLR 281

United States v Fisher 6 U.S. 358 (1805)

X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92

Zanon v The State of Western Australia [2016] WASCA 91

MARTIN CJ: 

Summary

1. A (the applicant) has been charged with unlawfully assaulting B at Broome on 29 March 2013, contrary to s 313(1) of the Criminal Code (WA) (Criminal Code), and with assaulting C at Broome on 19 April 2013 and thereby causing C bodily harm, contrary to s 317(1) of the Criminal Code.  The applicant contends that the proceedings which have been brought against the applicant are an abuse of process because the prosecutor, Ms Susan Baker (the second respondent), has access to the evidence which the applicant gave, and the transcript of that evidence, when the applicant was examined under compulsion at a public hearing of the Corruption and Crime Commission (WA) (Commission) (the third respondent).  The applicant also contends that the Magistrates Court of Western Australia has no jurisdiction to entertain the charges brought against the applicant, because the proceedings in that court were not lawfully instituted, essentially because Ms Baker, who signed each prosecution notice, had no lawful authority to do so.

2. For the reasons which follow, the legislation in force at the time the proceedings were instituted against the applicant in the Magistrates Court,[1] and now,[2] authorises the prosecutor to have access to the evidence, and the transcript of the evidence, given by the applicant during the course of the applicant's compulsory examination before the Commission.  However, on the proper construction of that legislation, the Commission's powers and functions do not extend to the prosecution of persons in respect of matters investigated by the Commission which are otherwise unrelated to the administration and enforcement of the legislation establishing the Commission.[3]  Because the offences allegedly committed by the applicant are not of that character, Ms Baker was not acting in the course of her duties as an officer of the Commission when she commenced the prosecutions against the applicant, and therefore lacked authority to commence those prosecutions.  For that reason, the applicant's application should be granted in part, and orders made quashing the prosecution notices and the proceedings commenced against the applicant in the Magistrates Court.

   [1] Corruption and Crime Commission Act 2003 (WA).

   [2] Corruption, Crime and Misconduct Act 2003 (WA).

   [3] The question of whether officers of the Commission have authority to commence proceedings for offences related to the administration and enforcement of the legislation establishing the Commission does not arise in this case, and should await determination in a case in which that issue arises.

The facts

1. The facts relevant to the applicant's application are not contentious.  They have been established by affidavits sworn by the applicant and Ms Baker.  They are as follows.

2. The applicant was at all relevant times, but is no longer, a police officer.  During March and April 2013 the applicant was stationed at Broome.

3. On or about 23 April 2013, in accordance with the Corruption and Crime Commission Act 2003 (WA)[4] (Act), the Commission received a notification from WA Police relating to the conduct of the applicant in connection with the arrest and detention of B and C. On 24 April 2013 and 1 May 2013 respectively, the Commission instigated investigations with respect to the possible misconduct of the applicant pursuant to s 33(1)(a) of the Act.

   [4] Now known as the Corruption, Crime and Misconduct Act 2003 (WA) following amendments which came into force on 1 July 2015.

4. Ms Baker is employed by the Commission in the position of Principal Investigator. She was appointed to be an authorised officer of the Commission pursuant to s 184 of the Act, by the then Corruption and Crime Commissioner (Commissioner) in February 2006, and again by the then Acting Commissioner in July 2014. On 6 May 2013, an officer acting on behalf of the Commissioner of the Commission applied for Ms Baker to be granted the status of special constable in accordance with s 35 of the Police Act 1892 (WA) (Police Act).  In the application the officer confirmed that Ms Baker:

   will only exercise the powers of Special Constable for the purposes of Corruption and Crime Commission investigations or operations.

5. On the same day, namely 6 May 2013, the Commissioner of Police appointed Ms Baker to be a special constable. The appointment specifies that Ms Baker may only exercise her powers as a special constable 'whilst stationed at the Corruption and Crime Commission in Western Australia'. This condition was imposed pursuant to s 35(2) of the Police Act, which empowers the Commissioner of Police to appoint a special constable 'for such period and on such terms and conditions as the Commissioner decides'.

6. On a strictly literal view of the instrument of Ms Baker's appointment as a special constable, it could be argued that the condition imposed upon her appointment only imposed a temporal limitation upon her powers as special constable - namely, for the period during which she was 'stationed' at the Commission.  However, senior counsel for the second and third respondents accepts, appropriately, that the condition imposed in the instrument of appointment should be construed in light of the terms of the application for appointment bearing the same date, in which it was asserted that Ms Baker would only exercise the powers of special constable for the purposes of 'investigations or operations' of the Commission.  Put another way, senior counsel for the second and third respondents properly accepts that although Ms Baker's powers as a special constable are co‑extensive with the powers of a police officer,[5] as a result of a condition imposed at the time of her appointment as a special constable those powers can only be used for the purposes of investigations or operations lawfully undertaken by the Commission.

   [5] Police Act, s 36.

7. Ms Baker had no involvement in the conduct of the Commission's initial investigations into the applicant's conduct. Based upon the information gathered in the course of those investigations, and legal advice, the then Commissioner determined that the examinations into the possible misconduct of the applicant should be conducted in public in accordance with s 140 of the Act.

8. Between May and June 2013 Ms Baker was involved in the planning and coordination of the examinations.  Witnesses were identified who could give evidence with respect to incidents which occurred at the Broome watch house on 29 March and 19 April 2013.  Public examinations of those witnesses took place between 10 and 18 June 2013.  The applicant was summoned to attend a public examination commencing on 10 June 2013, although the applicant was not examined until 11 June 2013.

9. Prior to the applicant's examination, lawyers acting on the applicant's behalf applied for the examination to be conducted in private.  That application was rejected by the then Commissioner, although the identity of the applicant was suppressed during the examinations and has been suppressed at all times thereafter.  The applicant has never commenced legal proceedings challenging the validity of the Commissioner's decision to conduct examinations in public relevant to the inquiry into the applicant's possible misconduct.

10. However, the applicant did commence proceedings challenging the Commissioner's decision to disclose to the public and to the media audiovisual recordings taken at the Broome watch house which the Commission had received in the course of its investigations.  Those proceedings were dismissed.[6]

    [6] Re Roger Macknay QC; Ex parte A [2013] WASC 243; A v Corruption and Crime Commissioner [2013] WASCA 288.

11. Transcripts of the public examinations conducted by the Commission with respect to the investigation of the applicant, including the transcript of the evidence given by the applicant, were posted on the website of the Commission on 14 June 2013.  They were removed from that website on 28 July 2015, pending resolution of the issues the subject of these proceedings.

12. Ms Baker was present during part of the public examinations, although she deposes that she has limited recollection of the evidence given, and has not subsequently read the full transcripts of the evidence.

13. Ms Baker took responsibility for the conduct of the investigation into the applicant's alleged misconduct in March 2014. On 17 April 2014 she signed the relevant prosecution notices instituting criminal proceedings against the applicant. As I have noted, one alleges that the applicant unlawfully assaulted B at Broome on 29 March 2013, contrary to s 313 of the Criminal Code, and the other alleges that the applicant assaulted C at Broome on 19 April 2013, thereby causing C bodily harm, contrary to s 317 of the Criminal Code.  Each notice was lodged at the Kalgoorlie Magistrates Court on 5 May 2014, that being the court closest to the place at which the applicant was then residing.

14. Ms Baker deposes, and there is no reason to doubt, that all evidence relevant to the prosecution of the applicant was obtained prior to the examinations conducted by the Commission, other than evidence relating to continuity of exhibits and other evidence.  She also deposes, and there is no reason to doubt, that no evidence to be adduced in support of the prosecution of the applicant was derived from the examinations conducted by the Commission, and in fact, no new information was gathered relevant to the prosecution as a result of or following the examinations.  However, copies of the transcript of the public examinations have been included in the prosecution brief provided to the applicant, in purported compliance with the disclosure obligations imposed by the Criminal Procedure Act 2004 (WA) (CPA).

15. It is not proposed to call Ms Baker as a witness in the prosecution of the applicant.  External independent counsel have been briefed to conduct the prosecutions against the applicant.  Neither has been provided with a copy of the transcript of the applicant's evidence to the Commission, pending the outcome of these proceedings.  Those counsel have been briefed by a lawyer employed by the Commission who has not been provided with a copy of the transcript of the evidence given by the applicant to the Commission.  Steps have been taken to ensure that the Commission's lawyer does not have access to the transcript of that evidence pending the outcome of these proceedings.

16. On 27 August 2014 the applicant applied for orders permanently staying the prosecution of each charge brought against the applicant, pursuant to s 76 of the CPA. Those applications were heard on 17 October 2014, and on 28 November 2014 Magistrate Maughan delivered his reasons for dismissing each application. Magistrate Maughan is the first respondent in these proceedings. Appropriately,[7] he has taken no active part in these proceedings, and has filed a notice agreeing to abide by the outcome.

    [7] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35 (Gibbs, Stephen, Mason, Aickin & Wilson JJ).

The application for review

1. On 14 July 2015 the applicant commenced proceedings seeking a review of the decision of Magistrate Maughan pursuant to s 36 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act). No explanation has been proffered for the delay of more than seven months between the date of the magistrate's decision, and the commencement of the proceedings seeking a review of that decision, although the second and third respondents take no point in respect of that delay. Lest other applicants for relief under s 36 of the Magistrates Court Act be encouraged to act tardily by the stance adopted by the parties to these proceedings, I should make it clear that in my view, because the section is, in effect, the statutory embodiment of the power which this court otherwise has to control the proceedings of an inferior court, such as the Magistrates Court, by the grant of prerogative relief, the section impliedly incorporates established principles with respect to the grant of such relief.  Those principles include the power of the court to refuse relief in the exercise of its discretion on a variety of grounds, including the ground of unreasonable delay.  However, as I have noted, in this case the respondents take no point with respect to delay, and in particular do not assert that they have suffered any prejudice by reason of the delay in the commencement of these proceedings, and so no more need be said on that subject.

2. It is well established that the jurisdiction conferred upon this court by s 36 of the Magistrates Court Act is jurisdiction to conduct a judicial review, which is a jurisdiction quite separate and distinct from jurisdiction to entertain an appeal,[8] and also quite different in character. So, in the circumstances of this case, the question is not whether the magistrate erred. Rather, the question is whether the proceedings against the applicant are an abuse of process, or alternatively have not lawfully invoked the jurisdiction of the Magistrates Court. In either case, as relief in the nature of prerogative relief would ordinarily be granted,[9] it follows that if either abuse of process or lack of jurisdiction is made out, appropriate and analogous relief should be granted under s 36 of the Magistrates Court Act.  If abuse of process is made out the appropriate relief would be either the grant of permanent stay in respect of the proceedings or perhaps orders regulating the manner in which the proceedings are prosecuted.  In the case of lack of jurisdiction, the appropriate relief would be an order quashing the proceedings.

   [8] See, eg, Rayney v AW [2009] WASCA 203; Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357.

   [9] But for s 35 of the Magistrates Court Act. In the case of a finding of abuse of process, the magistrate's refusal to grant a stay of proceedings pursuant to the power conferred by s 76 of the CPA would provide a ground for review under s 36 of the Magistrates Court Act.

3. A judge of the General Division granted a review order pursuant to s 36 of the Magistrates Court Act,[10] and further directed that the order for review be referred to the Court of Appeal for determination.[11]  The power to refer proceedings to the Court of Appeal for determination at first instance is a power that should be exercised sparingly.  However, this was an appropriate case for its exercise, given that:

   (a)no oral testimony was required, as there are no contentious facts; and

   (b)the issues raised by the application for review are issues of general importance in this State, as they relate to the proper construction and effect of the Act with respect to the prosecution of criminal proceedings arising from investigations conducted under the Act.

   [10] A review order is analogous to an order nisi in prerogative proceedings.

   [11] Pursuant to the Rules of the Supreme Court 1971 (WA), O 56A r 3(2).

The issues

1. The application for review raises two issues:

   (a)As the prosecutor of the charges against the applicant is either the Commission or an officer of the Commission, does the Commission's possession of the transcript of the evidence given by the applicant in the course of the applicant's public examination with respect to the subject matter of the charges now brought against the applicant give rise to an abuse of process?

   (b)Does the Magistrates Court lack jurisdiction to entertain the charges brought against the applicant because Ms Baker lacked lawful authority to issue the prosecution notices commencing those proceedings?

Transcript of the applicant's public examination - the alleged abuse of process

1. The assertion that the criminal proceedings which have been brought against the applicant are an abuse of process relies entirely upon the proposition that the applicant's 'right to a fair trial had been altered in a fundamental respect by the prosecution (in this case the [Commission]) having in its possession [the applicant's] compulsorily acquired answers under examination by the [Commission]'.[12]

   [12] Applicant's submissions [26.1].

2. Enunciated in this way, the proposition is obviously incomplete.  The applicant was examined compulsorily in the exercise of the powers conferred by the Act.  The cases to which I will shortly refer establish that, in the absence of any constitutional limit upon legislative power,[13] the legislature can validly enact laws which abrogate fundamental rights and freedoms and which authorise the alteration of the accusatorial nature of the criminal trial process in a fundamental respect.  The question of whether a particular statute has this effect must be answered by the process of statutory construction, taking full account of the principle of legality.

   [13] There has been no suggestion in these proceedings that there is any constitutional limit upon the legislative power of the Western Australian Parliament relevant to the issues arising in these proceedings.

3. The question of whether prosecution access to the transcript of the evidence given by the applicant when examined by the Commission constitutes an abuse of process involves two distinct questions:

   (a)Does prosecution access to the transcript infringe a fundamental principle of the accusatorial system of criminal justice?

   (b)If so, is prosecution access to the transcript authorised by the Act, either by express words or necessary implication?[14]

   In order to succeed on this aspect of the case, the applicant must establish an affirmative answer to the first question, and a negative answer to the second.

   [14] Although the Act has been amended following the applicant's examination, for the purpose of this question nothing turns upon these amendments:  see footnote 4 above.

4. The applicant relies upon two decisions of the High Court in support of this aspect of the applicant's case - X7 v Australian Crime Commission[15] (X7) and Lee v The Queen[16] (Lee (No 2)).  However, those cases need to be viewed in light of the decision of the High Court in Lee v NSW Crime Commission[17] (Lee (No 1)) - a decision delivered after X7 and before Lee (No 2) - and the later decision in R v Independent Broad-based Anti-corruption Commissioner[18] (R vIBAC).

X7

[15] X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92.

[16] Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455.

[17] Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196.

[18] R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8 - as this decision was delivered after the conclusion of argument in this case, the parties were invited to provide written submissions with respect to the effect, if any, of that decision on these proceedings. Perhaps surprisingly, neither party took up that opportunity.

1. The question which arose in X7 v Australian Crime Commission[19] was whether the Australian Crime Commission Act 2002 (Cth) (ACC Act) authorised the compulsory examination of a person who had been charged with criminal offences with respect to the subject matter of those offences. By a majority of 3:2,[20] the High Court answered that question in the negative.

   [19] X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 (X7).

   [20] Hayne, Kiefel & Bell JJ deciding; French CJ & Crennan J dissenting.

2. In their joint judgment, Hayne and Bell JJ summarised their conclusions in the following terms:[21]

   The relevant provisions of the ACC Act should not be construed as authorising the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge. Permitting the Executive to ask, and requiring an accused person to answer, questions about the subject matter of a pending charge would alter the process of criminal justice to a marked degree, whether or not the answers given by the accused are admissible at trial or kept secret from those investigating or prosecuting the pending charge.

   Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.

   [21] X7 [70] - [71].

3. That conclusion relied upon the rule of statutory construction often now described as the 'principle of legality'.[22]  Hayne and Bell JJ referred to the enunciation of that principle by O'Connor J in Potter v Minahan:[23]

   It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.  (footnotes omitted)

   [22] See, eg, Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 [21] (Gleeson CJ); Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [43] (French CJ); X7 [87] (Hayne & Bell JJ).

   [23] Potter v Minahan (1908) 7 CLR 277, 304, quoting Sir Peter Benson Maxwell, On The Interpretation of Statutes (Sweet & Maxwell, 4^th ed, 1905) 122,  which in turn cited United States v Fisher 6 U.S. 358, 390 (1805).

4. In the view of Hayne and Bell JJ, notions of fairness were an irrelevant distraction from the determinative question, which was a question of statutory construction.[24]

   [24] X7 [88], [91].

5. However, in their view, the accusatorial nature of the criminal justice process was very relevant to the proper construction of the ACC Act.  They described this aspect of the criminal justice process in the following terms:[25]

   The criminal trial process is accusatorial in the sense that it is for the prosecution to decide what charge is preferred against the accused. The trial process is accusatorial in the further sense that the prosecution bears the onus of proof of all elements of the charge that is laid. But describing these aspects of a criminal trial as 'accusatorial' must not distract attention from the much wider and no less fundamental observation that the whole process of criminal justice, commencing with the investigation of crime and culminating in the trial of an indictable Commonwealth offence, is accusatorial.  (footnotes omitted)

   [25] X7 [99].

6. In their Honours' view, even if the answers given at a compulsory examination were kept secret and therefore could not be used either directly or indirectly by those responsible for the investigation and prosecution of the matters charged, requiring an accused person to give answers after being charged would alter the accusatorial nature of the judicial process in a fundamental respect.[26]  In their view, such an alteration could only be made by statute if made clearly by express words or by necessary intendment.[27]  Their Honours emphasised that such an 'implication must be necessary, not just available or somehow thought to be desirable'.[28]  In their view, such an implication would be necessary if the purposes of the ACC Act generally, or of the examination provisions in particular, would be defeated by reading the ACC Act as not permitting the examination of a person charged with an offence with respect to the subject matter of the charge.  In their view, a construction of the ACC Act which would not permit such an examination defeated neither the general purpose of the Act, nor the purpose of the examination provisions in particular.  It followed that the ACC Act should not be construed in a way which would alter the accusatorial nature of the criminal justice system in a fundamental respect.[29]

   [26] X7 [124].

   [27] X7 [125].

   [28] X7 [142].

   [29] X7 [142] ‑ [148].

7. Kiefel J agreed generally with Hayne and Bell JJ, but also observed:[30]

   The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.

   Relevant to the question of legislative intention is not only the privilege of the person to refuse to answer questions which may incriminate him or her, but also a fundamental principle of the common law. The fundamental principle - that the onus of proof rests upon the prosecution - is as stated in Environment Protection Authority v Caltex Refining Co Pty Ltd, as is its companion rule - that an accused person cannot be required to testify to the commission of the offence charged. The prosecution, in the discharge of its onus, cannot compel the accused to assist it.

   The common law principle is fundamental to the system of criminal justice administered by courts in Australia, which, as Hayne and Bell JJ explain, is adversarial and accusatorial in nature. The accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial inquiries and investigations.  (footnotes omitted)

   [30] X7 [158] ‑ [160].

8. In their joint dissenting judgment, French CJ and Crennan J outlined the facts, including the fact that the examiner gave a direction, at the commencement of the examination, to the effect that no‑one associated with the prosecution of the charges against X7 would be permitted to participate in the examination or to receive a copy of the transcript of the examination.[31]  Their Honours explicitly acknowledged the principle of legality but for detailed reasons which they provided, concluded that when account was taken of the various safeguards within the ACC Act which inhibited the use of answers given at a compulsory examination in a way which would interfere with the fairness of the criminal trial process, the ACC Act, properly construed, authorised the examination of a person charged with offences with respect to the subject matter of those offences.

Lee (No 1)

[31] X7 [14].

1. The question for determination in Lee v NSW Crime Commission[32] was whether the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) authorised the compulsory examination of persons charged with criminal offences with respect to matters connected with those offences. The matter was argued before a court of seven before delivery of the decision in X7, although reasons were published after delivery of that decision.  Consistently with the positions adopted in X7, Hayne, Kiefel and Bell JJ were of the view that the CAR Act did not authorise such an examination, whereas French CJ and Crennan J were of the view that the CAR Act did authorise such an examination.  The latter view was shared by the additional two members of the court, Gageler and Keane JJ, and was therefore the view of a majority of the court.

   [32] Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (Lee (No 1)).

2. French CJ was of the view that although the privilege against self‑incrimination was not an essential element of the process of trial by jury, it was nevertheless 'a basic and substantive common law right',[33] citing Gibbs CJ in Sorby v The Commonwealth:[34]

   It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.

   [33] Lee (No 1) [24].

   [34] Sorby v The Commonwealth (1983) 152 CLR 281, 294.

3. French CJ reiterated that the construction of the CAR Act must take account of the principle of legality.  However, in that context he observed:[35]

   In considering the application of the principle of legality to the construction of the CAR Act it is also necessary to have regard to the following propositions:

   •Where the public policy of a statute and its purpose are identified with sufficient clarity, the option of making a constructional choice protective of common law rights may be precluded.

   •The fact that statutory powers are conferred upon a court to be exercised judicially tends in favour of a more liberal construction of those powers than in the case in which they are conferred on a non-judicial body.  (footnotes omitted)

   [35] Lee (No 1) [56].

4. French CJ identified various aspects of the CAR Act which, in his view, compelled the conclusion that the power of a court to order an examination under the CAR Act extended to the examination of persons charged with criminal offences.

5. In reasons separately expressed, Crennan J arrived at essentially the same conclusion as French CJ.  In their joint judgment, Gageler and Keane JJ made various observations with respect to the principle of statutory construction known as the principle of legality, including the following:[36]

   Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

   The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that '[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve'.  (footnotes omitted)

   [36] Lee (No 1) [313] ‑ [314].

6. Further, their Honours rejected:[37]

   [t]he notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused.

   [37] Lee (No 1) [324].

7. In their view, the CAR Act, properly construed, revealed a coherent scheme for the recovery of the fruits of criminal activity which included the examination of persons suspected of criminal activity irrespective of whether or not charges were pending against those persons.[38]

   [38] Lee (No 1) [333] - [334].

8. Hayne and Bell JJ agreed with the dissenting reasons of Kiefel J.[39]  In the course of those reasons, she referred to the principle of legality in the following terms:[40]

   As Gleeson CJ observed in Al-Kateb v Godwin, the principle of legality is not new. In 1908, O'Connor J, in Potter v Minahan, referred to a passage from the fourth edition of Maxwell on Statutes which stated that '[i]t is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness'. Absent that clarity of expression, the courts will not construe a statute as having such an operation. In Electrolux Home Products Pty Ltd v Australian Workers' Union, Gleeson CJ said '[t]he presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.' The principle has been cited and applied on many occasions as a rule of statutory construction. The principle was applied in X7.

   In Coco v The Queen, it was explained that the insistence on express authorisation of an abrogation of a fundamental right, freedom or immunity must be understood as a requirement for a manifestation or indication that the legislature not only directed its attention to the question of abrogation, but has also determined to abrogate the right, freedom or immunity. General words will rarely be sufficient to show a clear manifestation of such an intention because they will often be ambiguous on the aspect of interference with fundamental rights. The same requirement must apply to any interference with fundamental principles or departure from the general system of law to which Potter v Minahan drew attention.

   The applicable rule of construction recognises that legislation may be taken necessarily to intend that a fundamental right, freedom or immunity be abrogated. As was pointed out in X7, it is not sufficient for such a conclusion that an implication be available or somehow thought to be desirable. The emphasis must be on the condition that the intendment is 'necessary', which suggests that it is compelled by a reading of the statute. Assumptions cannot be made. It will not suffice that a statute's language and purpose might permit of such a construction, given what was said in Coco v The Queen.  (footnotes omitted)

   [39] Although Hayne J added some strident observations with respect to the importance of the doctrine of precedent.

   [40] Lee (No 1) [171] ‑ [173].

9. In that context, the reasons of Kiefel J analysed various aspects of the CAR Act and concluded that the CAR Act as a whole did not reveal, with clarity, a necessary intention that a person charged with a crime can be examined pursuant to its terms.[41]

Lee (No 2)

[41] Lee (No 1) [253].

1. Each of the appellants in Lee v The Queen[42] were convicted after trial by jury. They had been the subject of an investigation by the New South Wales Crime Commission (Crime Commission). As part of those investigations, and prior to either appellant being charged, each appellant had been summoned to give evidence to the Crime Commission. At the commencement of the examination of one of the appellants, the New South Wales Crime Commissioner gave a direction pursuant to s 13(9) of the New South Wales Crime Commission Act1985 (NSW)[43] (NSWCC Act) prohibiting the publication of the evidence in the absence of permission to the contrary.  That subsection of the NSWCC Act required the Crime Commission to make a direction prohibiting the publication of evidence when publication might prejudice the fair trial of a person who may be charged with an offence.

   [42] Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 (Lee (No 2)).

   [43] Now repealed.

1. In fact, contrary to that direction and without any prior consent of the Crime Commission, the transcript of evidence given by each appellant was made available to the Director of Public Prosecutions (NSW) for use in the prosecution of each appellant. It was conceded by the Crown that the provision of the transcript was unlawful, as it contravened a direction properly given pursuant to s 13(9) of the NSWCC Act.

2. Each appellant appealed against their conviction on various grounds, including the ground that the prosecution's possession of the transcript of their examinations before the Crime Commission gave rise to a miscarriage of justice.  That ground was upheld in a unanimous decision of the High Court.[44]  In their joint reasons, the court observed:[45]

   Our system of criminal justice reflects a balance struck between the power of the state to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that 'no attempt to whittle it down can be entertained' albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

   The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.

   The purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who might be charged with offences. It supported the maintenance of the system of criminal justice referred to in X7 and the trial for which that system provides, in which the prosecution has a defined role and the accused does not. The protective purpose of s 13(9) would usually require that the [Crime Commission] quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the [Crime Commission] to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not met in the present case, with the consequence that the appellants' trial differed in a fundamental respect from that which our criminal justice system seeks to provide. (footnotes omitted)

   [44] French CJ, Crennan, Kiefel, Bell & Keane JJ.

   [45] Lee (No 2) [32] ‑ [34].

3. Their Honours went on to observe that:[46]

   There was no legislative authority for that alteration. Indeed, it occurred contrary to the evident purpose of s 13(9) of the NSWCC Act, directed to protecting the fair trial of examined persons.

   [46] Lee (No 2) [51].

4. Their Honours considered that the critical question in the case was whether the unauthorised alteration of the trial in a fundamental respect gave rise to a miscarriage of justice.[47]  The court was unanimously of the view that it did.

R v IBAC

[47] Lee (No 2) [39].

1. The facts giving rise to the appeal in R v Independent Broad-based Anti-corruption Commissioner[48] are not dissimilar to the facts giving rise to these proceedings. The Victorian Independent Broad-based Anti-corruption Commission (IBAC) commenced an investigation into the conduct of Victorian police officers stationed at a regional police station. The investigation concerned the question of whether certain police officers had assaulted a woman in a cell at the police station on a particular occasion, and other incidents which were alleged to have occurred at the same police station in recent years and which might have involved the violation of the human rights of other women. IBAC issued a summons to each of the appellants, requiring them to give evidence in a public examination with respect to the matters the subject of the investigation. The IBAC Commissioner rejected the first appellant's submissions that the first appellant could not be compelled to give evidence, or alternatively that the first appellant's evidence should be taken in a private hearing. Central to each submission was the proposition that the matters under investigation extended to the possible commission of criminal offences which could be prosecuted by IBAC, pursuant to an express power to prosecute conferred upon IBAC by s 190 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (IBAC Act).

   [48] R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8 (R v IBAC).

2. The IBAC Commissioner's decision was challenged in judicial review proceedings commenced in the Supreme Court of Victoria.  Those proceedings were dismissed at first instance and leave to appeal was refused by the Victorian Court of Appeal.  The High Court granted special leave to appeal, but dismissed the appeal.

3. Relevant provisions of the IBAC Act included the conferral upon IBAC of the express object of identifying, investigating and exposing misconduct by police personnel.[49]  Further, the IBAC Act expressly permits the provision of information acquired by IBAC to a number of persons and bodies, including State, Territory and Commonwealth prosecutorial bodies and law enforcement agencies such as Victoria Police.[50]

   [49] IBAC Act, s 8.

   [50] IBAC Act, s 41.

4. Other provisions of the IBAC Act expressly empower the conduct of examinations, including public examinations. In that context, s 144(1) of the IBAC Act abrogates the privilege against self‑incrimination. Section 144 also provides that evidence that would otherwise have fallen within the scope of that privilege is not admissible in evidence against the person except in proceedings for:[51]

   (a)perjury or giving false information; or

   (b)an offence against [the IBAC Act]; or

   …

   (f)a disciplinary process or action.

   [51] IBAC Act, s 144(2).

5. As I have noted, the IBAC Act expressly confers power upon IBAC to commence proceedings 'for an offence in relation to any matter arising out of an IBAC investigation'.[52]

   [52] IBAC Act, s 190.

6. Understandably, the appellants focused their argument upon that provision, arguing that the immunity against the use of evidence that would otherwise come within the scope of the privilege against self‑incrimination would be illusory if the prospective prosecutor was able to use the power of examination to gather material which, although not generally admissible in a prosecution, would be of benefit to the prosecutor in the conduct of the prosecution.  In that context, significantly, the plurality[53] observed:[54]

   No doubt this observation was made with an eye to the decision of this Court in [Lee (No 2)], but that case turned upon the non-observance of statutory provisions directed to preserving the forensic balance between the prosecution and the accused protected by the common law.  No such issue arises in this case.  (foonotes omitted)

   [53] French CJ, Kiefel, Bell, Keane, Nettle & Gordon JJ.

   [54] R v IBAC [28].

7. The principal argument of the appellants was that the IBAC Act could not be construed as permitting the compulsory examination of a person reasonably suspected of a crime because that 'would effect a fundamental alteration to the process of criminal justice' by requiring that person to assist in his or her own prosecution.[55]  That contention corresponds, in substance, to the applicant's contention in this case to the effect that the Act cannot be construed as authorising the provision of the transcript of the compulsory examination of the applicant to a prosecutor because that would achieve essentially the same 'fundamental alteration to the process of criminal justice'.

   [55] R v IBAC [30], citing X7 [118], [41], [105], [109].

8. As I have noted, the plurality rejected the appellants' reliance on Lee (No 2) on the ground that that case was concerned with the unlawful provision of information gathered compulsorily in contravention of the relevant statutory provisions.  The plurality also rejected the appellants' reliance upon X7, on the ground that 'the decision turned on the circumstance that the person to be compulsorily examined … had been charged with an offence and was, as a result, subject to the accusatorial judicial process.'[56]  In that context, a passage from the joint judgment of Hayne and Bell JJ in X7[57] is cited, in which it is clear that the principle applied by their Honours depended upon the fact that the subject of the proposed examination had been charged with an offence.[58]

   [56] R v IBAC [41].

   [57] X7 [70] ‑ [71].

   [58] R v IBAC [41].

9. In the same context, the plurality noted the observations of Kiefel J in X7[59] to the effect that 'the rule that "an accused person cannot be required to testify to the commission of the offence charged" is a companion to the fundamental principle of the common law that the onus of proof of a criminal charge rests upon the prosecution.'[60]  In that context the plurality observed:[61]

   [59] X7 [159].

   [60] R v IBAC [42].

   [61] R v IBAC [43] ‑ [48].

   The companion principle is, as its name suggests, an adjunct to the rights of an accused person within the system of criminal justice. Its application depends upon the judicial process having been engaged because it is an aspect of that process. Thus, in X7, the joint reasons of Hayne and Bell JJ made it clear that the companion principle protects the position of 'a person charged with, but not yet tried for' a criminal offence.

   In [Lee (No 2)], this Court affirmed the fundamental principle of the common law that it is for the prosecution to prove the guilt of an accused person as 'an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.' The Court went on to say:

   The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.

   These observations were set in the context of a discussion of the 'balance struck between the power of the State to prosecute and the position of an individual who stands accused.'

   Most recently, in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd, French CJ, Kiefel, Bell, Gageler and Keane JJ referred to this passage from [Lee (No 2)], and went on to say that the companion principle:

   is an 'aspect of the accusatorial nature of a criminal trial in our system of criminal justice' whereby an accused person cannot be compelled to assist the prosecution to make its case. The companion principle is a 'companion' of criminal trials. (emphasis in original)

   In the same case, Nettle J said:

   The fundamental principle of the criminal justice system that the onus of proof beyond reasonable doubt rests on the Crown, and its companion rule that the accused cannot be required to assist in proof of the offence charged, are now conceived of as expressions of the basic accusatorial nature of the criminal justice system.

   In the present case, the companion principle is not engaged because the appellants have not been charged; and there is no prosecution pending. The appellants urge the Court to extend the principle. For a number of reasons, that suggestion should not be accepted. First, to reformulate the principle as the appellants urge would be to extend its operation beyond the rationale identified in the authorities, namely, the protection of the forensic balance between prosecution and accused in the judicial process as it has evolved in the common law.  (footnotes omitted)

10. In summary, the plurality held that neither the principle described in X7 and Lee (No 2) as the 'fundamental principle', nor the principle described in those cases as the 'companion principle', was infringed by the compulsory examination of a person reasonably suspected of crime by an agency with the power to prosecute that crime.  Further, the plurality confined the decision in Lee (No 2) to cases in which information gathered in the course of a compulsory examination was provided to a prosecutor in contravention of the statute which authorised the examination.  Put more directly, the plurality rejected the appellants' fundamental proposition that their compulsory examination would effect a fundamental alteration to the process of criminal justice.

11. That view of the reasons of the plurality is confirmed by the failure of the plurality to apply the rule of construction described as the principle of legality to the construction of the IBAC Act in respect of the compulsory examination issue.  In particular, the plurality did not pose nor answer the question of whether some fundamental principle of the common law or basic right had been abrogated by the express words or necessary intendment of the IBAC Act in respect of compulsory examination.  Rather, the reasons of the plurality are limited to a conventional process of statutory construction of the IBAC Act, uninfluenced by any presumption and which focused upon the express abrogation of the privilege against self‑incrimination.  In that context it was observed that the section abrogating the privilege would have no work to do unless a person reasonably suspected of having committed an offence could be subject to examination.[62]  The failure of the plurality to engage with the process of construction embodied in the expression 'the principle of legality' can only be consistent with a conclusion that the principle was not invoked because the compulsory examination of the appellants by their prospective prosecutor did not alter any fundamental principle of the common law or the criminal trial process, or abrogate any fundamental freedom, right or immunity.

    [62] R v IBAC [53].

12. Gageler J agreed with the plurality that the appeal should be dismissed, but for different reasons.  He left open the question of whether the recently formulated 'companion rule' might operate during the investigation of an offence in the same way that it operates during the prosecution of that offence.[63]  He considered that the appellants' proposition with respect to the operation of that rule 'might be thought to be illustrated' by the facts of Lee (No 2), given that the compulsory examinations in that case were conducted before charges were laid.[64]

    [63] R v IBAC [68] ‑ [70], [73].

    [64] R v IBAC [69].

13. However, it was unnecessary for Gageler J to resolve that issue because, in his view:[65]

    [W]hatever the temporal operation of the companion rule might be, the IBAC Act manifests an unmistakable legislative intention that a person summoned and examined might be a person whose corrupt conduct or criminal police personnel misconduct is the subject-matter of the investigation.

    [65] R v IBAC [73].

14. In the view of Gageler J, the exclusion of persons whose corrupt conduct or criminal police personnel misconduct might be the subject of examination under the IBAC Act was unjustified by the unqualified statutory language used in the IBAC Act, and would undermine the principal statutory purpose of that Act by compromising the attainment of the express object of identifying, investigating and exposing misconduct by police.[66]  Further, in his view, such a construction of the IBAC Act would 'reduce to nonsense the IBAC Act's solemn abrogation of the privilege against self‑incrimination'.[67]  For those reasons, the terms of the IBAC Act left Gageler J in no doubt that it was intended that a person reasonably suspected of crime might be examined pursuant to its terms.  By expressing that conclusion in terms of 'unmistakable legislative intention', Gageler J, unlike the plurality, utilised language apt to the application of the rule of construction described as the principle of legality.

Does prosecution access to the transcript alter the criminal trial process in a fundamental respect?

[66] R v IBAC [74].

[67] R v IBAC [75].

1. In my view the answer to the first question posed by this aspect of the applicant's case - namely, whether the applicant's right to a fair trial has been altered in a fundamental respect by the prosecution having access to the transcript of the applicant's compulsory examination - is provided by the decision of the plurality in R vIBAC.  Although there is, with respect, much to be said for the view expressed tentatively by Gageler J to the effect that the decision in Lee (No 2) might be thought to support an affirmative answer to the question, in R vIBAC the plurality expressly confined the decision in Lee (No 2) to a circumstance in which investigative material acquired compulsorily was furnished to the prosecution in contravention of the statute authorising its acquisition.  This court is, of course, bound to follow and apply the reasons of the plurality.

2. The approach taken by the plurality in R v IBAC is only consistent with the decision in Lee (No 2) having such a restricted application.  That is because the plurality did not consider that the use of powers of compulsory examination by a prospective prosecutor for the purposes of a prospective prosecution involved any alteration of the criminal trial process in a fundamental respect.  In the view of the plurality, in the absence of the material compulsorily acquired being furnished to the prosecution in contravention of the statute authorising the investigation, the criminal trial process would only be altered in a fundamental respect if the process had already been engaged by the commencement of criminal proceedings prior to the compulsory examination.

3. In the present case, no proceedings had been commenced against the applicant at the time the applicant was examined before the Commission.  It follows that, in the view of the plurality in R vIBAC, neither the 'fundamental principle' nor the 'companion principle' was engaged at the time those examinations were conducted and the transcript of the evidence given by the applicant prepared and provided to officers of the Commission.  Further, unlike Lee (No 2), in this case there is no suggestion that the provision of the transcript of the applicant's examination to any person responsible for prosecuting the applicant has taken place in contravention of an order or direction made by the Commission, or in contravention of any express provision in the Act equivalent to s 13(9) of the NSWCC Act which applied in Lee (No 2).  To the contrary, as will be seen, there are provisions in the Act which expressly authorise the provision of information gathered by the Commission in the course of its investigations to prosecuting agencies.[68]  For these reasons, in my view, this court is bound to apply the reasons given by the plurality in R vIBAC to conclude that access by the prosecution to the transcript of the applicant's examination before the Commission does not involve any alteration to any fundamental principle of the common law or the criminal trial process, nor does it abrogate any fundamental freedom, right or immunity.

R v OC

[68] Section 18(2)(h) and s 152(4)(b) of the Act.

1. In arriving at this conclusion, I do not overlook the contrary view expressed by the Court of Criminal Appeal of New South Wales in R v OC.[69] That case concerned the question of whether criminal proceedings should be stayed because the transcript of an examination undertaken pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) had been provided to the team responsible for the prosecution of the applicant for the stay. The examination had been conducted prior to any criminal proceedings being commenced.

   [69] R v OC [2015] NSWCCA 212.

2. The Commonwealth Director of Public Prosecutions (CDPP) accepted that the provision of the transcript to the prosecution team involved derogation from 'a fundamental principle of the accusatorial system of criminal justice', and the court accepted and acted upon that concession.[70] However, the CDPP argued, successfully, that the ASIC Act had modified that principle.

   [70] R v OC [97] - [98].

1. This court should, of course, follow the decision of another intermediate appellate court unless satisfied that decision is wrong.[71]  Because of the view which I take of the effect of the decision of the High Court in R v IBAC, it is of the utmost significance that the CDPP made the relevant concession in R vOC, and that the court delivered its decision in R v OC prior to the decision of the High Court in R vIBAC.  In my respectful view, that aspect of the decision of the New South Wales Court of Criminal Appeal in R vOC has been overtaken by the decision in R vIBAC.

   [71] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135] (Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ).

2. This conclusion is sufficient to dispose of the applicant's contention that the criminal proceedings brought against the applicant are an abuse of process because the prosecution has access to the transcript of the applicant's examination before the Commission.  However, for the sake of completeness, it is desirable to address and resolve the second issue which arises in respect of this aspect of the applicant's case, which concerns the proper construction and effect of the Act on the assumption that a contrary conclusion has been reached in respect of the first question.  As the cases to which I have referred make clear, on that assumption the question which must be asked and answered is whether the Act authorises the prosecution either expressly or by necessary implication to have access to the transcript of the compulsory examination of a person in relation to the subject matter of offences with which he or she has been charged following compulsory examination.  For the reasons which follow, in my view the answer to that question is clearly and unmistakably affirmative.

Did the Act at the time of the applicant's examination authorise prosecution access to the transcript?

1. In addressing the proper construction and effect of the Act,[72] I will first address the more general provisions of the Act which bear upon the issue under consideration, before turning to the specific provisions relating to the use which can be made of evidence given under examination before the Commission and the provision of information to prosecuting authorities by the Commission.

General provisions of the Act

[72] As at the time of the applicant's examination.  Any  material differences between the Act and the Corruption, Crime and Misconduct Act 2003 (WA) are noted below.

1. First, it is significant that the principal objects of the Act, and the primary functions of the Commission created by the Act, include the investigation of criminal conduct.  It is hardly necessary to go beyond the short title of the Act or the name of the Commission created by the Act to make good that proposition, as each refer to 'crime'.  However, more specific substantiation of the proposition can be found in the definition of 'misconduct' which includes criminal conduct by a public officer,[73] such as a police officer,[74] and the functions expressly conferred upon the Commission which include the investigation of allegations of misconduct.[75]

   [73] Sections 3 and 4 of the Act.

   [74] Section 3 of the Act and s 1 of the Criminal Code.

   [75] Section 18 of the Act. After 1 July 2015, this function of the Commission has been limited to 'serious misconduct': see Corruption and Crime Commission Amendment (Misconduct) Act 2014 (WA), s 10 and Corruption, Crime and Misconduct Act 2003 (WA), s 18.

2. Second, the Commission is empowered to conduct examinations for the purposes of an investigation under the Act.[76] The Commission is empowered to issue a summons to require a person to attend before the Commission and give evidence,[77] and may require a witness to take an oath or make an affirmation.[78]  A person who fails without reasonable excuse to attend as required by a summons, or who refuses or fails to be sworn or make an affirmation, or who fails to answer any question relevant to the investigation that the Commission requires the person to answer, is in contempt of the Commission.[79]  Contempt of the Commission is punishable as if it were a contempt of the Supreme Court.[80]

   [76] Section 137 of the Act.

   [77] Section 96 of the Act.

   [78] Section 141 of the Act.

   [79] Sections 159 and 160 of the Act.

   [80] Section 163 of the Act.

3. Significantly, the privilege against self‑incrimination which would otherwise be available to witnesses summoned to give evidence before the Commission is expressly abrogated by s 160(2) of the Act.

4. Examinations before the Commission are to be conducted in private unless the Commission otherwise orders.[81]  However:[82]

   The Commission may open an examination to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, it considers that it is in the public interest to do so.

   Although the Commission is required to take into account 'the potential for prejudice' when deciding whether or not to open an examination to the public, which would no doubt include potential prejudice to a person who might be accused of crime following the Commission's investigations, the Act does not contain any provision equivalent to s 13(9) of the NSWCC Act, which obliges the examiner to make a direction prohibiting the publication of evidence when publication might prejudice the fair trial of a person who may be charged with an offence.

   [81] Section 139 of the Act.

   [82] Section 140(2) of the Act.

5. Any evidence given before the Commission (and, inferentially, the transcript of any evidence given before the Commission) falls within the definition of the term 'restricted matter'.[83] 'Restricted matter' must not be disclosed other than in accordance with s 151 of the Act, or by the Commission pursuant to s 152 of the Act. However, s 151 provides that unless the Commission orders otherwise, restricted matter may be disclosed if it has already been disclosed at a part of an examination that was open to the public.[84]  So, although the Commission is empowered to make an order restricting the disclosure of evidence given at a public examination, understandably, the default position is that there is no restriction upon disclosure of evidence given at a public examination.

   [83] Section 151 of the Act.

   [84] Section 151(3) of the Act.

6. The general provisions to which I have referred identify the object or purpose of the Act relevant to this case, and the scheme by which that object or purpose is to be achieved.  Two significant observations flow from a consideration of these general provisions.

7. First, the Act expressly authorises the conduct of compulsory examinations for the purpose of investigating criminal conduct and expressly abrogates the privilege against self‑incrimination which would otherwise be available to persons examined.  After the decision in R v IBAC, it cannot be contended that the powers conferred by the Act do not extend to the compulsory examination of persons reasonably suspected of crime.  It follows that, in the language of Gageler and Keane JJ in Lee (No 1), the Act is 'legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle [of legality] is sought to be invoked'.[85]  This is therefore one of those cases in which it is 'of little assistance … to invoke a general presumption against the very thing which the legislation sets out to achieve'.[86]

   [85] Lee (No 1) [314].

   [86] Lee (No 1) [314], quoting Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7; (2000) 199 CLR 321 [43] (Gleeson CJ, Gaudron, Gummow, Hayne & Callinan JJ).

8. Second, in the general provisions to which I have referred, no distinction is drawn between those who might be reasonably suspected of crime, and those who are not suspected of crime but who are thought to be able to provide relevant evidence to the Commission.  Nor are the powers conferred upon the Commission qualified in any way by reference to any such distinction, or by reference to the fact that an examinee may later be charged with criminal offences.  To the contrary, the language used in all of the provisions to which I have referred is entirely unqualified by reference to distinctions of this character.

9. In that context it is appropriate to now turn to the provisions of the Act which deal more specifically with:

   (a)the use which may be made of evidence given before the Commission; and

   (b)the information which can be given by the Commission to prosecuting agencies.

Use of evidence given to the Commission

1. Section 145 of the Act deals with the use of statements made by witnesses in examinations conducted by the Commission.  It provides:

   145.     Use of statements of witness against the witness

   (1)A statement made by a witness in answer to a question that the Commission requires the witness to answer is not admissible in evidence against the person making the statement in -

   (a)any criminal proceedings; or

   (b)proceedings for the imposition of a penalty other than -

   (i)contempt proceedings; or

   (ii)proceedings for an offence against this Act; or

   (iii)disciplinary action.

   (2)Despite subsection (1), the witness may, in any civil or criminal proceedings, be asked about the statement under section 21 of the Evidence Act 1906.

2. Section 21 of the Evidence Act 1906 (WA) (Evidence Act) provides:

   21.     Cross‑examination as to and proof of prior inconsistent statement

   Every witness under cross‑examination in any proceeding, civil or criminal, may be asked whether he has made any former statement relative to the subject‑matter of the proceeding, and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion, and if he does not distinctly admit that he made such statement, proof may be given that he did in fact make it.

   The same course may be taken with a witness upon his examination in chief or re‑examination, if the judge is of opinion that the witness is hostile to the party by whom he was called and permits the question.

3. Section 145 of the Act provides  what may be loosely described as 'direct use immunity' in the sense that, subject to the qualifications contained within the section, evidence given under compulsion during an examination before the Commission cannot be admitted as evidence in any subsequent criminal proceedings against the witness.

4. Three significant aspects of the section merit attention.  First, the Act contains no prohibition upon the derivative use of evidence given by a witness examined under compulsion before the Commission.  Put another way, the only limitation imposed by the Act upon the subsequent use of evidence given under compulsion before the Commission is in respect of the evidence admissible in subsequent criminal proceedings against the witness.  The Act contains no other limitation upon the use to which such evidence might be put either by the Commission, or by any agency to whom the Commission might lawfully disclose the evidence pursuant to the terms of the Act.  In a case such as this, where the relevant examination was conducted in public and the Commission has made no order restricting disclosure of the evidence given, the Act imposes no constraint upon disclosure of the evidence given.[87]

   [87] Section 151(3) of the Act.

5. Second, as I have already noted, although the Act clearly authorises the compulsory examination of persons who might reasonably be suspected of criminal conduct, there is no provision in the Act corresponding to s 13(9) of the NSWCC Act which obliges the Commission to make directions with respect to the use which might be made of such evidence so as to ensure the fair trial of such persons.

6. Third, the immunity conferred by s 145 is qualified in two significant respects.  First, evidence given under compulsion before the Commission may be tendered in evidence in proceedings brought against the witness for the imposition of a penalty if those proceedings are contempt proceedings, proceedings for an offence against the Act, or which are proceedings coming within the definition of 'disciplinary action'.[88]

   [88] See s 3 of the Act.

7. Second, and most significantly, the immunity conferred by the section is qualified by the express provision which authorises questions about the evidence given in accordance with s 21 of the Evidence Act.  In the context of criminal proceedings commenced against the witness after compulsory examination by the Commission, obviously those questions would be asked by the prosecutor.

8. So, s 145(2) of the Act expressly authorises the cross‑examination of a witness in relation to statements made by that person during compulsory examination before the Commission if those statements are inconsistent with the evidence given in the criminal proceedings. Obviously no prosecutor could exercise the authority conferred by that provision without access to the transcript of the evidence given before the Commission. It follows that the section must be taken to authorise access by a prosecutor to the transcript of the evidence given by a witness under examination before the Commission, either by the express words of s 145(2) or by 'necessary intendment'. There is nothing in the wording of the section which would suggest that use of the prior statement is precluded when the witness is the accused who has given evidence to the Commission under examination prior to being charged. To the contrary, the express reference within the section to the admissibility of statements made to the Commission as evidence against the maker of the statement in criminal proceedings necessarily connotes that s 21 of the Evidence Act can be utilised in such proceedings.

9. During the course of oral argument it was suggested to counsel for the applicant that because s 21 of the Evidence Act only applied to an accused if and when that accused person elected to give evidence, s 145(2) should be construed as only authorising access by the prosecutor to evidence given before the Commission by an accused person if and when such a person elected to give evidence in their defence. Although counsel for the applicant was, at times, equivocal with respect to this proposition,[89] it is clear from her oral submissions as a whole that she did not contend that the provision should be construed in this way.[90] The proposition was properly eschewed. There is nothing in the language of s 145(2), or in the Act as a whole, which would support such a strained and impractical construction of s 145(2). In particular, there is nothing in the Act which would enable an intention to be attributed to the legislature to the effect that if and when a person, charged with criminal offences and who had given evidence with respect to the subject matter of those offences to the Commission prior to being charged, elected to give evidence in their defence, the prosecutor could then, and only then, call for the transcript of the evidence given before the Commission and then review that transcript for the purpose of exercising the authority conferred by s 145(2).

The provision of information to prosecuting authorities

[89] ts 24 ‑ 25.

[90] ts 21, 26, 28, 29.

1. Other indications of the intention necessarily attributed to the legislature are to be found in the provisions of the Act which expressly authorise the provision of information to prosecuting authorities by the Commission. By s 18(2)(h) of the Act, the functions expressly conferred upon the Commission include the assembly of evidence obtained in the course of exercising its misconduct function and the provision of 'evidence which may be admissible in the prosecution of a person for a criminal offence against a written law' to an independent agency or other authority, including suitable authorities in other jurisdictions in the case of evidence which may be admissible in the prosecution of a person for an offence against a law of those jurisdictions.

2. Argument was presented before us on the assumption that the reference to s 21 of the Evidence Act in s 145(2) of the Act rendered a prior inconsistent statement made in the course of evidence before the Commission admissible in criminal proceedings against the witness if the procedure required by s 21 of the Evidence Act was followed. That assumption was made notwithstanding the more limited terminology of s 145(2) of the Act, which, by its terms, only authorises the asking of questions with respect to the prior inconsistent statement and does not expressly authorise the reception of the prior inconsistent statement in evidence. The assumption was fairly and reasonably made, as there would be little point in authorising a prosecutor to cross‑examine in relation to a prior inconsistent statement if that statement could not be tendered in evidence in the event of denials by the witness. Nevertheless, as the issue was not argued before us, it is not appropriate to express a concluded opinion upon it.

3. However, on the assumption made before us to the effect that a prior inconsistent statement made in evidence given before the Commission is rendered admissible in the circumstances identified in s 21 of the Evidence Act, at least in respect of prosecutions in this State, statements made by a person later accused of crime in evidence before the Commission would be 'evidence which may be admissible' in the prosecution of that person. On that assumption, pursuant to s 18(2)(h) of the Act, the Commission's functions expressly include the provision of such a statement to an independent agency, including a prosecuting agency.[91]

   [91] Section 3 of the Act.

4. Further, s 152(4)(b) of the Act provides that official information may be disclosed by officers of the Commission for the purposes of a prosecution instituted as a result of an investigation conducted by the Commission. As 'official information'[92] includes information acquired by a person in the course of the performance of that person's functions under the Act, the transcript of evidence given before the Commission in the possession of an officer of the Commission would clearly fall within its terms.  Such transcript would fall within the definition of both 'restricted matter'[93] and 'official information'. Because s 151 of the Act does not apply to the provision of information by the Commission pursuant to s 152 of the Act in respect of restricted matter that is also official information,[94] the net effect of the two sections is that the Commission is authorised to provide the transcript of evidence given before the Commission for the purposes of a prosecution instituted as a result of an investigation conducted by the Commission. Given that s 145(2) of the Act expressly authorises a prosecutor to cross‑examine a witness in relation to evidence given by that person before the Commission in certain circumstances, the provision of that evidence to a prosecutor by the Commission would be 'for the purposes of a prosecution' and is therefore expressly authorised by s 152(4)(b) of the Act.

   [92] Section 152(1) of the Act.

   [93] Section 151(1) of the Act.

   [94] Section 151(5) of the Act.

5. Further, s 43(5) of the Act provides:

   If the Commission gives an independent agency a recommendation that consideration should be given to the prosecution of a particular person, the Commission must also give the independent agency all materials in the Commission’s possession that would be required for the purposes of sections 61 and 95 of the Criminal Procedure Act 2004 if that prosecution took place.

6. Sections 61 and 95 of the CPA deal with the obligation of disclosure by prosecutors in courts of summary jurisdiction and superior courts respectively. Both sections oblige a prosecutor to serve 'confessional material' on an accused person. That expression is defined by s 42 and s 35 of the CPA to include any written record of interview with the accused, whether signed or unsigned, and any interview of the accused that has been electronically recorded. In that context 'interview' is defined by reference to s 115 of the Criminal Investigation Act 2006 (WA), which means an interview with a suspect by a police officer or a 'CCC officer'. The expression 'CCC officer' in that section has the meaning given to the term 'officer of the Commission' by the Act, which includes both officers and employees of the Commission and persons engaged to provide services to the Commission.[95] Lawyers engaged by the Commission for the purposes of an examination would come within the meaning of that expression, with the consequence that the examination of a person suspected of crime would come within the meaning of 'interview' and therefore a record of that examination would fall within the meaning of 'confessional material' for the purposes of s 61 and s 95 of the CPA.

   [95] Section 3 of the Act.

1. As I have noted, the applicant commenced proceedings challenging the decision of the Commissioner to release the video recordings of the incidents in the Broome police station.  At both first instance and on appeal, orders were made in those proceedings suppressing publication of the identity of the applicant.[127]  When the decision dismissing the applicant's appeal was delivered in this court, the order suppressing publication of the applicant's identity was continued because counsel advised that an application would be made for special leave to appeal to the High Court.

   [127] Re Roger Macknay QC; Ex parte A [2013] WASC 243 [35]; A v Corruption and Crime Commissioner [2013] WASCA 288 [1].

2. In those proceedings, the applicant asserted that the Commissioner's decision to publish the video recordings of the incidents in the Broome police station exceeded the powers conferred upon him by the Act for various reasons, including by reason of the effect which publication of those recordings might have on any criminal proceedings brought against the applicant in relation to the incidents investigated.  In that context, publication of the identity of the applicant before those proceedings had been finally determined could have had the effect of rendering the relief sought by the applicant in those proceedings nugatory, and the suppression orders were made on that basis, at least in part.  Those proceedings were not finally resolved until 20 June 2014, when the High Court dismissed the applicant's application for special leave to appeal.

3. In the meantime, the second respondent commenced the criminal proceedings against the applicant which are the subject of these proceedings.  On 9 June 2014, when those proceedings came before the magistrate who is the first respondent, he made orders suppressing publication of the identity of the applicant and the victims of the alleged offences.  Reasons for those orders have not been published, but it is reasonable to infer that the magistrate would have been influenced by the fact that suppression orders then remained in force in relation to the proceedings which the applicant had commenced in this court with respect to the publication of the video recording of the incidents in the Broome police station.

4. The magistrate was not invited to review the continuation of those orders after the High Court dismissed the applicant's application for special leave to appeal, and before the criminal proceedings were stayed by the grant of the order for review by Kenneth Martin J on 20 July 2015.  At the time that the review order was made, the suppression orders made by the magistrate remained in force, and it is clear that Kenneth Martin J was influenced by that fact at the time he made the interim suppression orders ex parte.  The question which now arises is whether those interim ex parte orders and the suppression orders made by the magistrate on 9 June 2014  should be continued or revoked.

The principle of open justice

1. The principle of open justice requires:[128]

   that the administration of justice must take place in open court and that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.  Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it.

   [128] Prisoners Review Board v Freeman [No 2] [2010] WASCA 167 [8] (Pullin, Newnes & Murphy JJA), citing John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465, 476 ‑ 477 (McHugh J); ReHer Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172 [36], citing Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J).

2. The principle of open justice is deep rooted and ingrained in the Australian justice system.  Its origins and rationale are well known and need not be reiterated in this case.  Departure from the principle will only be justified if required in the interests of justice.  The interests of justice which justify departure from the principle of open justice will usually be found to lie in the administration of justice, and there is no suggestion in this case that a relevant interest might be found elsewhere.  Potential prejudice to the administration of justice which would justify departure from the principle might be found either in respect of the proceedings in which a suppression order is sought, or in respect of other proceedings which might be affected by unrestricted publication of the proceedings in which a suppression order is sought, or in both respects.

Determination of the application

1. The proceedings in which the applicant challenged the Commission's decision to publish the video recordings of the incidents in the Broome police station provide an example of a case in which departure from the principle of open justice was necessary to protect the interests of the proper administration of justice in relation to that case, and was also necessary to protect the interests of the proper administration of justice in other proceedings.  Suppression of the identity of the applicant in respect of the video recording proceedings was necessary to protect the interests of the proper administration of justice because publication of the applicant's identity prior to the final determination of those proceedings could have had the effect of rendering the relief which the applicant sought in those proceedings nugatory.  Suppression of the identity of the applicant was also necessary because publication of the applicant's identity would have defeated the steps taken by the Commission to conceal the identity of the applicant because of the impact which revelation of that identity might have had upon the subsequent trial of any charges brought against the applicant, given the Commission's inquiry and the terms of its report to the Parliament.

2. It is difficult to see any basis upon which continuation of the interim suppression orders made by Kenneth Martin J could be justified by reference to the interests of the proper administration of justice with respect to the current proceedings.  These proceedings are concerned essentially with issues of statutory construction and the powers of the Commission.  In that context it is difficult to see how the revelation of the identity of the applicant could have any adverse impact upon the proper resolution of those issues, or render any of the relief sought by the applicant in these proceedings nugatory.

3. However, these proceedings must be seen in the context of:

   (a)the steps taken by the Commission to conceal the identity of the applicant in the course of its inquiry and in the course of the presentation of its report to the Parliament, including the pixelation of the videos which comprised part of that report;

   (b)the orders made in the various previous proceedings commenced by the applicant suppressing publication of the applicant's identity, which were made, in part, so as to not undermine the steps taken by the Commission to conceal the applicant's identity; and

   (c)the prospect that criminal charges may be brought against the applicant by another prosecutor, notwithstanding the orders of this court quashing the charges currently brought against the applicant.

4. There is a clear inference to the effect that the orders made by the Commission so as to conceal the identity of the applicant and the identity of those involved in the incidents investigated by the Commission (B and C) were made so as to minimise the impact which the Commission's inquiry and report might have upon the subsequent trial of the applicant on any charges brought against the applicant arising from those incidents.  Unless orders to similar effect are maintained in these proceedings, the Commission's objectives would be thwarted, as members of the public, including representatives of the media, would be able to make a clear connection between the persons identified in these proceedings, and the

persons whose identities were concealed by the Commission and by the orders made in the previous proceedings concerning the applicant.  It would not be appropriate for this court to undermine the steps taken by the Commission to protect what it considered to be the proper interests of the administration of justice with respect to the trial of any charges that might be brought against the applicant by lifting the interim suppression orders made by Kenneth Martin J.

1. Assuming, without being taken to decide, that this court is sufficiently seized of jurisdiction with respect to the proceedings before the magistrate so as to interfere with the suppression orders which he made, similar considerations dictate against the exercise of any such jurisdiction, strengthened by the further consideration that those proceedings are to be quashed by orders of this court.  Whether or not similar orders should be made by another court in the event that charges are brought against the applicant is a matter which must be determined by that court in all the circumstances.  It is sufficient for present purposes to note that it does not necessarily follow from the continuation of the suppression orders in these proceedings that the identity of the applicant or the complainants needs to be suppressed in any subsequent criminal proceedings given that the revelation of those identities would not, of itself, enable any connection with any of the prior proceedings in which those identities have been suppressed.  That is, of course, not to say that such a connection might not be made by other means.

Conclusion

1. The application for a stay of proceedings on the grounds of abuse of process must be dismissed.  However, Ms Baker lacked the authority to commence the criminal proceedings against the applicant, and those proceedings must be quashed without prejudice to the capacity of some other person with appropriate authority to commence similar proceedings.  The application to set aside the suppression orders made by Kenneth Martin J and the magistrate should be dismissed.

2. McLURE P:  I agree with the orders proposed by the Chief Justice.  I agree, generally for the reasons given by the Chief Justice, that the second respondent did not have authority to commence criminal proceedings against the applicant.  The second and third respondents conceded, in effect, that if the second respondent did not have such authority (1) the prosecution notices would be invalid and (2) a valid prosecution notice is an essential preliminary to the exercise of the court's jurisdiction to hear and determine the criminal proceedings.  As to which, see Russell v The

State of Western Australia [2011] WASCA 246 [22] ‑ [28]. In my view, the concessions are correctly made.

1. The remaining ground of review is premised on the assumption that the Corruption and Crime Commission (the Commission) is lawfully entitled to commence and prosecute the charges the subject of the prosecution notices.  The applicant seeks a stay of the criminal proceedings on the ground that the applicant's right to a fair trial has been altered in a fundamental respect by the prosecution (that is, the Commission) having in its possession the applicant's compulsorily acquired answers obtained under its statutory examination powers.  This ground is misconceived.  It is necessary to briefly summarise the background.  The full background is given in A v Corruption and Crime Commissioner [2013] WASCA 288 (the CCTV appeal).

2. The applicant, in his capacity as a police officer, was involved in the arrest and detention of B at Broome on 29 March 2013 and C at Broome on 19 April 2013.

3. In May 2013, the Commission commenced an investigation into whether any public officer had engaged in misconduct in relation to the arrest and detention of B or C (the misconduct investigation). As part of the misconduct investigation, the applicant was summonsed under s 96 of the Corruption and Crime Commission Act 2003 (WA) (CCC Act) to attend an examination before the Commission. In June 2013, the Commission ordered that the examination of the applicant be conducted in public pursuant to s 140 of the CCC Act. The applicant had made an unsuccessful application for the examination to be conducted in private. However, the Commission suppressed the identities of (inter alia) the applicant, B and C.

4. On 11 June 2013, the applicant was compulsorily examined about the events involving B on 29 March 2013 and C on 19 April 2013.  The transcripts of the examinations, appropriately redacted to reflect the suppression orders, were published on the Commission's website.

5. On 23 December 2013, the Commission tabled in Parliament a copy of its report in which it concluded that the applicant had used excessive force against B and C (the Commission's Parliamentary Report).  The Commission also concluded that the applicant's conduct could constitute an assault [80], [183]. 

6. On 17 April 2014 the applicant was charged with unlawfully assaulting B, contrary to s 313(1) of the Criminal Code (WA) (Code) and unlawfully assaulting C occasioning him bodily harm, contrary to s 317(1) of the Code. The second charge is an 'either way charge', which means an indictable charge that may be tried either on indictment or summarily.

7. The term 'charge' is defined in the Criminal Procedure Act 2004 (WA) (CPA) to mean an allegation in a prosecution notice or indictment that a person has committed an offence (s 3). In each relevant prosecution notice the prosecutor is identified as the Commission and the person issuing the prosecution notice (Ms Baker) as an authorised officer under the CCC Act.

8. At the time of the compulsory examination, the applicant's status was that of suspect, not accused. At no time has the applicant challenged the validity of the summons served on him under s 96 of the CCC Act. In particular, the applicant accepts that the Commission has, and validly exercised, its power to compulsorily examine him about matters going directly to the offences of which he was then suspected and with which he was subsequently charged. Indeed, the evidence of Ms Baker was that all evidence relevant to the prosecution of the applicant was obtained prior to his compulsory examination.

9. As noted in Zanon v The State of Western Australia [2016] WASCA 91, there is a series of cases in which the High Court has considered the scope and effect of statutory powers to compulsorily examine a person charged with a criminal offence (an accused) and a person suspected of having committed a criminal offence (a suspect), including X7 v Australian Crime Commission (2013) 248 CLR 92 (X7); Lee v New South Wales Crime Commission (2013) 251 CLR 196 (Lee No 1)); Lee v The Queen (2014) 253 CLR 455 (Lee No 2); Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 (CFMEU v Boral); and R v Independent Broad‑based Anti-corruption Commissioner [2016] HCA 8 (R v IBAC).

10. Referring to those cases, I said in Zanon:

    The issues in those cases have been determined on the basis of statutory construction (rather than constitutional immunity) against a backdrop of statutory intrusion into common law (judge made) rights, immunities, principles and values.  Of greatest relevance for present purposes are the common law privilege against self-incrimination; the principle that the onus of proof of a criminal charge rests on the prosecution (the onus principle); and the companion to the onus principle, being that an accused cannot be required to testify to the commission of the offence charged (the companion principle).

The primary tool for answering the question of statutory construction is the legality principle, pursuant to which statutes are not to be construed as abrogating important common law rights and immunities in the absence of clear words or necessary implication [111] ‑ [112].

1. Notwithstanding Lee No 2, it is now clear from R v IBAC that the onus principle and the companion principle have no application to the compulsory examination of suspects.  Accordingly, these principles do not engage the legality principle of statutory construction. 

2. If on the proper construction of the CCC Act, the Commission (1) has the power to compulsorily examine a suspect on matters relevant to the offences which he is suspected of having committed and (2) can, by itself or its duly authorised officers, commence and prosecute criminal proceedings in respect of those offences, it necessarily follows that the CCC Act authorises the possession and use of compulsorily acquired information in, and for the purpose of, such criminal proceedings unless otherwise excluded, expressly or by necessary implication. The only express exclusion is in s 145 of the CCC Act. Section 145 is confined to partial, direct use immunity. There is no express prohibition on the derivative (indirect) use by the Commission, as prosecutor, of compulsorily acquired information. There can be no implied prohibition on its derivative use unless it is to be inferred that the legislature intended the erection of Chinese walls within the Commission. Such a construction is unsustainable: Zanon [148] ‑ [160].

3. This court is not called upon to determine whether compulsorily acquired information in the Commission's possession could lawfully be provided to an external prosecuting authority to use, subject only to the express constraints in s 145 of the CCC Act.

   CORBOY J: 

Authority to prosecute the applicant

1. I agree that the second respondent was not authorised to prosecute the applicant for the reasons given by the Chief Justice.  Accordingly, the prosecution notices issued by the second respondent were invalid.

2. It was assumed in Russell v The State of Western Australia [2011] WASCA 246; (2011) 214 A Crim R 326 that a valid indictment is an essential preliminary to the exercise of the court's jurisdiction over a prosecution [27]. However, I agree with the President that a valid initiating process (prosecution notice or indictment) is an essential preliminary to the court's jurisdiction to hear and determine a charge

having regard to the scope and object of the Criminal Procedure Act 2004 (WA) (CPA) and the Act's requirements. Accordingly, I agree that the proceedings commenced by the second respondent must be quashed.

Compulsorily acquired evidence

1. Grounds 1.1 and 1.2 of the applicant's grounds of review allege that the magistrate erred by finding that s 145(2) of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act) permitted 'the prosecution' to have possession of 'an accused person's compellable testimony', and by further finding that s 145(2) 'permitted an incursion into the fundamental common law rights' of the applicant. Those grounds raised questions concerning the proper construction of the CCC Act (the CCC Act was retitled the Corruption, Crime and Misconduct Act on and from 1 July 2015).

The companion principle

1. A statute is not to be construed as affecting fundamental rights and procedural safeguards of individual rights and freedoms except by clear words or necessary implication (the legality principle).  It is a fundamental principle that the onus of proving a criminal charge rests on the prosecution.  The companion to that principle is that 'an accused person cannot be required to testify to the commission of the offence charged':  X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 [159] (Kiefel J) (emphasis added). Accordingly, the companion principle is a 'companion of criminal trials': Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 89 ALJR 622 [37]. Consistently with that limitation, the High Court held in R v Independent Broad-based Anti‑corruption Commissioner [2016] HCA 8; (2016) 90 ALJR 433 (R v IBAC) that the companion principle did not apply in determining whether the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic) permitted police officers who were suspected of having committed offences but who had not been charged with any offence to be compulsorily examined. The companion principle protects the rights of an accused person within the system of criminal justice so that the principle is only engaged when the judicial process has commenced.

1. As R v IBAC establishes, the judicial process is not engaged when a body such as the Commission examines a person who has not been charged with a criminal offence. That is so even if the examinee is suspected of having committed a criminal offence and the purpose of the examination is to investigate the circumstances of the suspected offence. Consequently, the companion principle is not relevant to the interpretation of those provisions of the CCC Act that relate to compulsory examinations and the possession and use of evidence obtained from examinations where the examinee has not been charged with a criminal offence. The principle will only apply where the issue to be determined concerns the Commission's powers in relation to a person who has been charged with an offence.

The purpose of the CCC Act

1. Section 7A of the CCC Act identifies the main purposes of the Act as combating and reducing the incidence of organised crime and improving continuously the integrity of, and reducing the incidence of misconduct in, the public sector. Section 7B provides that the Act's purposes are to be achieved primarily by establishing a Commission that is, among other things, able to:

   (a)authorise the use of investigative powers not ordinarily available to the police service to effectively investigate particular cases of organised crime;

   (b)investigate cases of serious misconduct;

   (c)help public authorities to prevent, and to identify and deal effectively and appropriately with, misconduct.

Serious misconduct and recommendations to consider prosecuting

1. Section 3 and s 4 of the CCC Act define what is meant by 'misconduct' and 'serious misconduct'. Serious misconduct means misconduct of a kind described in s 4(a), (b) or (c) by a public officer or 'police misconduct' (misconduct by a member of the Police Force). Section 4(a), (b) and (c) concern corruption and offences committed by a public officer while performing a public function or acting in a public capacity.

2. Section 18(1) provides that it is a function of the Commission to ensure that an allegation about, or information or matter involving, serious misconduct is dealt with in an appropriate way. Section 18(2) provides that the Commission performs that function by, among other things:

   (a)investigating or taking other action in relation to allegations and matters concerning serious misconduct if it is appropriate to do so (s 18(2)(c));

   (b)regardless of whether or not there has been an allegation of serious misconduct, investigating the possible occurrence of serious misconduct; (s 18(2)(e));

   (c)assembling evidence obtained in the course of exercising the serious misconduct function (s 18(2)(h));

   (d)furnishing to an independent agency or an appropriate authority, evidence that may be admissible in the prosecution of a person for a criminal offence against a written law or which may otherwise be relevant to the functions of the agency or authority (s 18(h)(i); and s 18(h)(ii) empowers the Commission to provide evidence that may be admissible in the prosecution of an offence in another jurisdiction to a suitable authority).

3. The term 'appropriate authority' is defined to mean 'a person, body or organisation who or which is empowered by a law of the State to take investigatory or other action, or both, in relation to misconduct' but does not include an independent agency (s 3).  The term 'independent agency' is defined to include the Director of Public Prosecutions (DPP).  An 'appropriate authority' will include the Commissioner of Police and the Police Force where the misconduct involves a criminal offence.

4. Section 22 of the CCC Act provides that the Commission may make assessments and form opinions about the occurrence of serious misconduct. It may do so on the basis of, among other things, consultations and investigations and other actions taken by itself or in co‑operation with an independent agency or appropriate authority.

5. Section 32 provides that the Commission is to deal with an allegation of serious misconduct by assessing the allegation and forming an opinion under s 22 and making a decision under s 33 that it considers appropriate in the circumstances. The decisions that may be made under s 33 include investigating or taking action with or without the involvement or co‑operation of any other appropriate authority or independent agency and referring the allegation to an appropriate authority or independent agency for action.

6. Further, the Commission may make a recommendation on whether consideration should or should not be given to the prosecution of a person (s 43(1)). The recommendation may be made on the basis of the Commission's assessments, consultations, opinions and investigations, taken by itself or in co‑operation with an appropriate authority or independent agency (s 43(2)). If the Commission recommends that an independent agency consider whether to prosecute a person, it must provide the agency with all materials in its possession that would be required for the purposes of s 61 and s 95 of the CPA if the prosecution took place (s 43(5)). Section 61 and s 95 of the CPA impose disclosure obligations on a prosecutor.

Organised crime

1. The term 'organised crime' is defined by s 3 of the CCC Act to mean the activities of two or more persons associated together solely or partly for purposes in the pursuit of which two or more 'Schedule 1 offences' are committed and the commission of each of which involves substantial planning and organisation. Schedule 1 to the CCC Act lists a number of offences created by the Criminal Code, the Criminal Property Confiscation Act 2000 (WA), the Firearms Act 1973 (WA) and the Misuse of Drugs Act 1981 (WA). Further, the CCC Act defines 'section 5 offences' as a 'Schedule 1 offence' committed in the course of organised crime (s 3 and s 5).

2. Section 46 of the CCC Act empowers the Commission to make an 'exceptional powers finding' on the application of the Commissioner of Police if it is satisfied, among other things, that there are reasonable grounds for suspecting that a section 5 offence has been, or is being, committed and that there are reasonable grounds for suspecting that there might be evidence or other information relevant to the investigation of the offence that can be obtained using exceptional powers. The Commission can exercise the powers conferred by div 2 ‑ div 5, pt 4 of the CCC Act if it has made an exceptional powers finding for the purpose of facilitating the investigation of a section 5 offence (s 47). Division 2 of pt 4 concerns examinations by the Commission. However, the division only contains provisions that facilitate and regulate an examination on a suspected section 5 offence. The power to conduct the examination is conferred by s 137.

3. Section 50 provides that:

   (1)A person summoned on an organised crime summons cannot be examined about matters that may be relevant to an offence with which the person stands charged, but this section does not prevent any other person from being examined about those matters.

   (2)For the purposes of this section a person stands charged with an offence when -

   (a)the person is informed by the person investigating the offence that he or she will be charged with the offence;

   (b)the persons investigating the offence ought to have formed the view that the person should be charged with the offence,

   whether or not at that time a prosecution notice in respect of the offence has been made or sworn; or

   (c)a prosecution notice in respect of the offence is made or sworn,

   whichever happens first.

Annual reports

1. Section 91 of the CCC Act requires the Commission to provide an annual report to Parliament. The matters on which the Commission must report include a description of the extent to which its investigations have resulted in prosecutions of public officers or other persons (s 91(2)(e)).

The examination power

1. Part 7 of the CCC Act concerns examinations by the Commission. The part refers to examinations of 'witnesses'. The term 'witness' is defined by s 3 of the CCC Act to mean a person who appears at an examination or an inquiry to give 'evidence'.

2. Section 137 of the CCC Act provides that the Commission may conduct an examination 'for the purposes of an investigation under this Act or for the purposes of an investigation in respect of which an exceptional powers finding has been made under section 46 and an organised crime summons has been issued'. Section 139 provides that an examination is not open to the public except as provided for by s 140. That section permits the Commission to open an examination to the public if, having weighed the benefits of public exposure and public awareness against the potential for prejudice or privacy infringements, it considers that it is in the public interest to do so.

3. Section 145 provides that:

   (1)A statement made by a witness in answer to a question that the Commission requires the witness to answer is not admissible in evidence against the person making the statement in -

   (a)any criminal proceedings; or

   (b)proceedings for the imposition of a penalty other than -

   (i)contempt proceedings; or

   (ii)proceedings for an offence against this Act; or

   (iii)disciplinary action.

   (2)Despite subsection (1), the witness may, in any civil or criminal proceedings, be asked about the statement under section 21 of the Evidence Act 1906.

4. Section 160 provides that a person who is required by the Commission to answer a question relevant to an investigation is not excused from the requirement to answer the question on the ground that the answer might incriminate or tend to incriminate the person or render the person liable to a penalty.

Disclosure

1. Section 151 restricts the disclosure of 'restricted matter'. 'Restricted matter' includes any evidence given before the Commission (s 151). However, s 152 provides that an officer of the Commission or a Commission lawyer may disclose information acquired by the person by reason of, or in the course of, the performance of the person's functions under the Act for the purpose of a prosecution instituted as a result of an investigation conducted by the Commission or any other prosecutions or disciplinary action in relation to misconduct.

Possession and use of compulsorily acquired evidence

1. A core function of the Commission is to investigate organised criminal activity and serious misconduct, including crimes that are suspected to have been committed by public officers.  It may investigate serious misconduct, including suspected crimes, with the DPP and the police (where the nature of the misconduct concerned is such that the police are an appropriate authority).  It is required to make assessments and opinions about the occurrence of serious misconduct and accordingly, about the possibility that a public officer has committed a crime.  Again, those assessments and opinions may be made and formed in co-operation with the DPP and, where appropriate, the police.  It may make a recommendation about whether consideration should be given to prosecuting a person and it is required to report to Parliament on the extent to which its investigations have resulted in the prosecution of public officers.

2. Section 18(2) provides that the Commission performs the serious misconduct function by, among other things, assembling evidence. As has been noted, pt 7 of the CCC Act concerns the examination of witnesses - that is, persons who appear before the Commission to give evidence. The purposes of an examination include investigating serious misconduct and organised crime. Accordingly, compulsory examinations are a means by which the Commission (1) investigates, assesses, forms opinions, makes recommendations and takes action about serious misconduct, including suspected criminal offences; (2) investigates suspected organised crime; and (3) assembles evidence of serious misconduct which it may furnish to a prosecuting authority where the evidence may be admissible in a prosecution.

3. I do not consider that the Commission has power to prosecute a person, at least where the offence alleged is under a statute other than the CCC Act. However, I consider that the Commission:

   (a)may compulsorily examine a person who is suspected of having committed a criminal offence that would constitute serious misconduct but who has not been charged with an offence (a 'suspected witness');

   (b)may examine a suspected witness for the purpose of investigating and assembling evidence about a suspected offence;

   (c)may possess and use the transcript and any other record of the evidence given by a suspected witness for the purpose of further investigating and assembling evidence about the suspected offence ('derivative use');

   (d)may furnish the DPP or another prosecuting authority with evidence that has been assembled, including the transcript and any other record of the examination evidence given by a suspected witness - the evidence that may be furnished is evidence that may be admissible in a prosecution of the witness;

   (e)must provide the DPP or another prosecuting authority with all materials that are required to be disclosed under the CPA where it recommends that consideration be given to prosecuting a suspected witness.

4. I further consider that the DPP or another prosecuting authority is authorised to receive and possess materials that must be disclosed in a prosecution and evidence that has been assembled by the Commission, including the transcript and any other record of the examination evidence given by a suspected witness.  Moreover, in my view the DPP or another prosecuting authority may:

   (a)use materials received from the Commission for the purpose of giving disclosure in the prosecution of a suspected witness;

   (b)where necessary, make derivative use of materials and evidence assembled by the Commission;

   (c)subject to s 145, use materials and evidence assembled by the Commission in the prosecution of a suspected witness.

5. I have reached those conclusions having regard to the provisions of the CCC Act to which reference has been made above. The use of the expression 'assemble evidence' to describe one way in which the Commission performs its serious misconduct function indicates that Parliament intended that the Commission could use its power of investigation, including its power of examination, to facilitate the prosecution of offences that constituted serious misconduct by independent agencies and appropriate authorities. The companion principle is not engaged for the purpose of ascertaining the meaning and effect of the CCC Act where the issue concerns the powers of the Commission in relation to a suspected witness or the possession and use of materials and evidence that have been assembled by the Commission about such a witness.

6. There are three further points to be made. First, grounds 1.1 and 1.2 of the applicant's grounds of review assumed that the second respondent, as an officer of the Commission, was authorised to prosecute the applicant. The argument that the second respondent could prosecute the applicant rested on the proposition that the power conferred on the Commission to 'take action' about serious misconduct included a power to prosecute a public officer for a criminal offence. It will be apparent from the conclusions that I have reached on the meaning and effect of the CCC Act that I consider that the Commission may possess and use evidence given by a suspected witness in the prosecution of the witness (subject to s 145) if it has a power to prosecute.

7. Second, I agree with the Chief Justice, for the reasons that he gives, that the terms of s 145(2) are consistent with - indeed, reinforce - the conclusion that the DPP or another prosecuting authority may possess and use evidence assembled and furnished by the Commission in prosecuting a suspected witness, including evidence given by the witness in a compulsory examination.

8. Third, I have made no finding concerning the powers of the Commission in relation to a person who has been charged with a criminal offence that would constitute serious misconduct, including whether the Commission can examine such a person and if so, whether it can provide the transcript to a prosecuting authority. Section 50 of the CCC Act deals with a person who has been charged with an offence and who is served with an organised crime summons. However, the Act does not expressly deal with a person who has been charged with an offence that would constitute serious misconduct. The application of the CCC Act to a person who has been charged with such an offence, and the possession and use by a prosecuting authority of compulsorily acquired evidence concerning the person, raises difficult questions that were not addressed by the parties. In the circumstances, it is not necessary nor appropriate to resolve those questions.

The suppression orders

1. I agree that the application to set aside the suppression orders made by Kenneth Martin J and the magistrate should be dismissed for the reasons given by the Chief Justice.