Bartlett v The Queen - [2012] WASC 503

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BARTLETT -v- THE QUEEN [2012] WASC 503

CORAM: EM HEENAN J

HEARD: 14, 15 & 16 NOVEMBER 2012

DELIVERED : 20 DECEMBER 2012

FILE NO/S: INS 107 of 2012

BETWEEN: PETER MERVYN BARTLETT
First Applicant
RONALD GEORGE SAYERS
Second Applicant
DEBORAH JEANNE GRACE
Third Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Procedure - Application for permanent stay of indictment - Prosecution by CDPP of three persons on joint charges of conspiring with intention of dishonestly causing loss to a Commonwealth entity - Alleged fraud in relation to income tax returns - Compulsory examination of accused in course of investigation by ACC - No privilege against self-incrimination in course of ACC compulsory examinations - Direct use immunity of answers given by examinees - Whether derivative use immunity exists - Disclosure of transcripts of compulsory examinations by ACC to CDPP - Whether disclosure impliedly prohibited - Australian Crime Commission Act 2002 s 25A(9) - Directions by examiner - Directions by CEO of ACC in relation to disclosure of transcripts of ACC examination - Obligation of examiner to give direction under s 25A(9)(d) - Whether publication or disclosure of examinees' transcripts may prejudice the fair trial of a person who has been or may be charged with an offence - Significance of transcripts being disclosed pursuant to direction of examiner or CEO - Whether fair trial of accused may be prejudiced - Whether decision of other court of co-ordinate jurisdiction should be followed

Legislation:

Australian Crime Commission Act 2002 (Cth)
Crimes Act 1914 (Cth)
Criminal Legislation Amendment (Powers and Offences) Act 2012 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Code Act 1995 (Cth)

Result:

Temporary and partial stay ordered pending decision of New South Wales Court of Criminal Appeal on appeal
Liberty to apply

Category: A

Representation:

Counsel:

First Applicant              :     Mr M C Boyce & Mr B D Luscombe
Second Applicant          :     Mr E Eyers & Mr B D Luscombe
Third Applicant            :     Mr I D Hill QC & Ms N K Kaddeche
Respondent:     Mr P Roberts SC & Mr A L Troy
Intervener by leave        :     Mr M J Ritter SC

Solicitors:

First Applicant              :     Clifford Chance
Second Applicant          :     Clifford Chance
Third Applicant            :     Jackson McDonald
Respondent:     Director of Public Prosecutions (Cth)
Intervener by leave        :     Australian Crime Commission

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

A v Boulton [2004] FCA 56; (2004) 204 ALR 598
A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420; (2004) 207 ALR 842
ABC v Sage [2009] FCA 170; (2009) 175 FCR 319
Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258; (2010) 268 ALR 281
Australian Securities Commission v Marlborough Goldmines Ltd [1993] HCA 15; (1993) 177 CLR 485
CC v Australian Crime Commission [2005] FCA 754
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Farah Constructions v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Federal Commissioner of Taxation v De Vonk (1995) 61 FCR 564
Hak Song Ra v Australian Crime Commission (2004) 138 FCR 51
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Lam Chee-ming v The Queen [1991] 2 AC 212
Lockwood v The Commonwealth (1954) 90 CLR 177
Mansfield v Australian Crime Commission (2003) 132 FCR 251
Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117
MP v The Queen; CB v The Queen [2012] HCA trans 162 (22 June 2012)
New South Wales Crime Commission v Lee [2012] NSWCA 437
Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460
R v CB; MP v The Queen [2011] NSWCCA 264
R v Seller & McCarthy [2012] NSWSC 934
Rogers v The Queen (1984) 181 CLR 251
Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281
Stoddart v Boulton (2010) 185 FCR 409
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25
X v Australian Crime Commission (2004) 139 FCR 413; (2004) 212 ALR 596
X7 v Australian Crime Commission & Commonwealth of Australia [S100 of 2012] [2012] HCA Trans 280

EM HEENAN J: By indictment dated 13 July 2012 the Commonwealth Director of Public Prosecutions (the CDPP) alleges that between about 15 August 2002 and 17 July 2004 at Perth in the State of Western Australia and elsewhere, Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace (nee Cammiade) did conspire with each other and with Gregory John Dunn and Trevor Neil Thomson with the intention of dishonestly causing a loss to a Commonwealth entity, contrary to s 135.4(3) of the Criminal Code (Cth). Each of the three accused has pleaded not guilty to this indictment and has been remanded on bail for trial by jury commencing on 4 February 2013. The trial is listed for a hearing of 10 to 11 weeks.
At this time no evidence has been presented against any of the accused. Some of the background which I shall now set out is common ground or not disputed but certain allegations of unlawful conduct remain allegations only. Nothing in the reasons which follow constitutes any adverse finding against the three accused. To the extent that these reasons may summarise or repeat allegations advanced by the prosecution, these are matters which are yet to be proved and which might never be proved. The determination of any such contentious matters must await the outcome of any trial. The factual background is long and involved and need not fully be described or summarised.
The case for the prosecution, essentially, is that the three accused and the two other alleged conspirators were motivated to engage in tax evasion and, in the process, Bartlett and Sayers knowingly and fraudulently executed certain documents relating to the taxable income of an entity known as the Barminco Unit Trust for the purposes of concealing its true assessable income for the year of income ending on 30 June 1999. The settling of the financial accounts for the Barminco Unit Trust for the year ended 30 June 1999 was not achieved until mid‑2002. It is alleged that the false documents relating to the Barminco Unit Trust for the 1999 tax year were signed by the accused Bartlett and Sayers in mid‑June 2002 and that in subsequent years various income tax returns and other documents were prepared which falsely misrepresented the distribution of the profit of the Barminco Unit Trust for the 1999 tax year. The prosecution alleges that further measures were taken to similar effect and purpose in January 2004 by the accused Grace in relation to the lodgement of income tax returns for family trusts associated with Bartlett and Sayers for the 2001 financial year.
These prosecutions are part of the result of a widespread tax investigation by the Australian Taxation Office (ATO) known as Operation Wickenby. This prosecution arose out of an Operation Wickenby brief referred to the CDPP by the Australian Crime Commission (the ACC) and which had been code named Operation Haycastle. The detailed investigations conducted by the ATO had been underway since about 2005 onwards and had involved references to the ACC which, as already noted, ultimately referred a brief (Operation Haycastle) to the CDPP.
In the course of its initial investigations, and certainly before these charges or any charges were laid against Messrs Bartlett, Sayers or Grace, each was required to submit to compulsory examination by the ACC under div 2 of the Australian Crime Commission Act (2002) (Cth) (the ACC Act) under compulsory powers. By virtue of s 30 of that Act a person attending such an examination is required to answer a question or to produce a document or thing notwithstanding that the answer or the production of the document or thing might tend to incriminate the person or to make that person liable to a penalty. Subject to compliance with certain procedures set out in s 30(3) the answer of the witness or the production of the document or thing is not admissible in evidence against that person in a criminal proceeding or a proceeding for the imposition of a penalty subject to certain exceptions ‑ which do not apply in this case. This gives rise to the so‑called 'direct use immunity' which protects the examinee from the use against him or her in criminal proceedings of the answers given or of the documents or things produced under the compulsory powers of such an examination by the ACC, again subject to the procedural conditions set out in s 30(4) of the ACC Act. By s 25A of the ACC Act the examiner may direct that any evidence given before the examiner or other information must not be published or must not be published, except in such manner and to such persons as the examiner specifies. Subsection 25A(9) includes a provision that:
The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
Such a direction by the examiner may be varied or revoked by the Chief Executive Officer (CEO) of the ACC but s 25A(11) provides that the CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence. By s 12(2) the performance of functions of the ACC in carrying out an ACC operation or investigation are expressly made subject to any relevant direction given under s 25A(9). It is accepted in this case that, for that reason, the functions of the ACC in the course of the Operation Haycastle investigation and reference to the CDPP are subject to any of those confidentiality directions.
In the present case the examiners who conducted the several compulsory examinations of these three accused each made directions under s 25A(9) authorising publication of certain information obtained at those compulsory examinations including the evidence of the examinee, the contents of certain documents or things produced and information enabling the identification of the witness to, among others:
(i)any law enforcement agency, the Australian Taxation Office or Australian Securities and Investment Commission (and the staff of such agencies and lawyers engaged) for any matter within their jurisdiction;
(ii)to any prosecution authority (and the staff of such agency and lawyers engaged), for any matter within their jurisdiction, including for a purpose related to any criminal prosecution or, proceeds or crime or confiscation proceedings, arising out of the ACC's investigation (related proceedings)
but, in those cases, directed that the evidence should only be published in the form of a summary, transcript (including an edited transcript) or audio recording). Otherwise, publication of the evidence, documents or things taken at or relating to these examinations was directed to remain subject to the limitations in s 30(5) of the ACC Act and that public release may not occur except as permitted by a court in relation to related proceedings.
In certain instances the directions of these examiners made under s 25A(9) were varied by the CEO of the ACC pursuant to the powers conferred by s 25A(11) but, again, those variations authorised publication in a similar fashion to, among others, the ATO and the CDPP. It will be necessary to describe those directions given under s 25A(9) and (11) in more detail later.
In substance, each of the accused now contends that the release of the transcripts and other information relating to his or her compulsory examinations by the ACC, including answers to questions and other information which in the circumstances is subject to direct use immunity and so inadmissible in the present proceedings against them, was not authorised by the ACC and would, in any event, prejudice the fair trial of each accused who at the time was a person who may be, and who now since has been, charged with an offence. This broad submission, as elaborated upon in the applicants' written and oral submissions by counsel, contains several elements.
At the first level it embraces a submission that, upon its proper interpretation the ACC Act and the common law combine to create not merely a direct use immunity as conferred by s 30(5) but also an 'indirect use immunity' which prevents any use or access to the information derived from the accused at the compulsory examinations by the CDPP or any other prosecuting authority.
Secondly, the broad submission also embraces a contention that the examiners conducting these compulsory examinations were positively obliged by s 25A(9) to direct that the results of the examination must not be published either at all, or at least to any prosecution authorities because doing so might prejudice the fair trial of the examinee who was a person who then might be charged with an offence.
Thirdly, the broad submission encompasses a further proposition, that regardless of any direction made by an examiner under s 25A(9) of the Act even one which did authorise the publication of the information derived from the compulsory examinations to prosecution authorities, including the CDPP, if such publication of information was of a nature or effect which might prejudice the fair trial of the examinee who might be charged with an offence, then a court could and should grant relief to prevent such potential prejudice to the fair trial of an examinee who has been charged with an offence by whatever means are necessary to do so, including, in a case such as the present where the information has been published to the CDPP, by directing a permanent stay of the ensuing prosecution or prosecutions.
In support of these submissions counsel for each accused relies upon the decision of Garling J in the Supreme Court of New South Wales in R v Seller & McCarthy [2012] NSWSC 934 where in comparable, but not identical, circumstances his Honour did order a permanent stay of proceedings on the indictments presented against those two accused. Counsel for each accused also relied upon the decisions cited and applied by Garling J, namely Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258; (2010) 268 ALR 281 and R v CB; MP v The Queen [2011] NSWCCA 264. I should note that the decision of Garling J in R v Seller & McCarthy is presently the subject of an appeal to the Court of Criminal Appeal of New South Wales and that that court sat and heard the appeal in mid‑November 2012 and its decision on that appeal at present remains reserved. It is also necessary to note that a case involving the powers of an examiner appointed under the ACC Act to conduct examinations under div 2 of pt 2 of the ACC Act of a person who has been charged with a Commonwealth indictable offence where the examination concerns the subject matter of the offence so charged was heard by the High Court of Australia on 7 November 2012, the decision of which also stands reserved. That case is X7 v Australian Crime Commission & Commonwealth of Australia [S100 of 2012] [2012] HCA Trans 280.
It is in these circumstances that each of these three accused has made application to this court for an order that these proceedings on indictment be permanently stayed. The application for a permanent stay is made by the accused Bartlett and Sayers pursuant to s 90(1) of the Criminal Procedure Act 2004 (WA) (the CPA) and by the accused Grace pursuant to s 98(2)(a) of the CPA. Nothing turns on that difference for I am satisfied that the applications brought, including the application by the accused Grace, clearly and unequivocally invoke the jurisdiction of the court to consider whether or not to grant a permanent stay of these proceedings.

More detailed history of background

These background facts are taken largely from the submissions from the CDPP but are supported by affidavit evidence used on these applications. Operation Wickenby was a joint ACC and ATO investigation into suspected tax fraud and money laundering by Australian taxpayers using services provided by a company called Strachans SA which was based in the Channel Islands. In the course of that investigation Dunn came to the attention of the ACC in 2004. As appears from the indictment, Dunn is one of the alleged co‑conspirators but has not been charged because in May 2005 he moved his permanent place of residence from Western Australia to Thailand and has not returned to Australia since. In 2005 the ACC commenced Operation Haycastle which was an investigation into tax avoidance schemes and alleged tax evasion engaged in by Dunn and his clients. As a part of that investigation, the ACC investigated tax avoidance schemes engaged in by Dunn, Bartlett and Sayers during the years 1999 to 2004.
In June 2005 the ACC executed a number of search warrants in connection with Operation Haycastle, including at the business premises of Thomson (another of the co‑conspirators who has since pleaded guilty and has been sentenced) and Grace and at the premises of Bartlett and Sayers. A large number of documents was seized. In addition, further documents were obtained pursuant to notices under s 29 of the ACC Act.
In the second half of 2005, again as part of Operation Haycastle, the ACC commenced compulsory examinations of various persons pursuant to its powers under Pt II div 2 of the ACC Act. In the course of these investigations the ACC examined each of these three accused on various occasions.

ACC examinations of Mr Bartlett

The ACC examined the accused Bartlett twice, namely on:
•24 October 2006 and
•10 December and 17 December 2009.
At the conclusion of each of these examinations the examiner made directions pursuant to s 25A(9) of the ACC Act which authorised publication of the information obtained at the examinations to 'any prosecution authority'. There were subsequent variations of the examiner's directions, pursuant to s 25A(10) of the ACC Act by the CEO of the ACC which also authorised publication to 'any prosecution authority'. A statement of Bartlett had been drafted and settled in conjunction with ACC investigators on or about 24 October 2006. That statement, signed by Bartlett, was tendered at the first of his examinations on 24 October 2006.

ACC examinations of Mr Sayers

The accused Sayers was subjected to compulsory examination by the ACC on three occasions, namely:
•16 September 2005
•24 October 2006 and
•10 December 2009, 17 and/or 19 January and 15 February 2010.
Again, the examiner made directions at the conclusion of each of these three examinations pursuant to s 25A(9) which authorised publication of the information obtained to 'any prosecution authority'. Subsequent variations to the examiner's directions were made by the CEO of the ACC pursuant to s 25A(10). These also authorised publication to 'any prosecution authority'.
On 14 September 2005 Sayers' legal representatives provided to the ACC a dossier of material, gave a presentation on behalf of Messrs Bartlett and Sayers about tax arrangements entered into by them and Barminco, and provided the ACC with an undated signed copy of a statement of Mr Sayers. That statement provided to the ACC on 14 September 2005 was subsequently tendered at Mr Sayers' examination on 16 September 2005.
Later another statement of Sayers was drafted and settled in conjunction with ACC investigators on or about 24 October 2005. This was subsequently signed by him and tendered at the ACC examination of 24 October 2006.
A further statement of Sayers was drafted and settled in conjunction with ACC investigators on or about 15 October 2010. This was subsequently signed by Sayers and tendered at his ACC examination on 15 February 2010.

ACC examinations of Ms Grace

Ms Grace was subjected to compulsory examination by the ACC on six occasions, namely:
•1 July 2005
•29 November 2005
•25 October 2006
•24 May 2007
•27 September 2007
•9 December 2009.

At the first four of these examinations the examiner made directions pursuant to s 25A(9) which authorised the publication of the information obtained to 'any prosecution authority'. The examiner also made directions at the end of the fifth and sixth examinations pursuant to s 25A(9) but these directions omitted any reference authorising publication of the information so obtained to 'any prosecution authority'.
Subsequent variations to the examiner's directions were made on 17 July 2009 by the CEO of the ACC pursuant to s 25A(10). These varied the directions made by the examiner at the first five examinations of Ms Grace and authorised publication of any information so obtained to 'any prosecution authority'. In the submissions of the CDPP this rectified the apparent oversight of the examiner in not authorising the publication to 'any prosecution authority' of the information obtained from the fifth examination of Ms Grace on 27 September 2007.
The CDPP submits that the details obtained from Ms Grace at the sixth compulsory examination on 9 December 2009 are irrelevant to the present charges against her and her co‑accused.
Written statements of Ms Grace dated 25 October 2006 and 27 September 2007 were settled prior to her examinations and were then subsequently signed by her at her examinations on those dates.

Delivery of ACC examinations and statements to the CDPP

The details of the provision of the transcripts of recordings of the ACC examinations of the three accused and their written statements have all been provided by the ACC to the CDPP and by the CDPP to the legal representatives of the three accused in response to requests by them and in performance of the prosecution's disclosure obligations. The exact details and circumstances of these disclosures are set out in the affidavit of S M Mullins affirmed 16 October 2012 and, in summary, are as follows.

(a) Provision of ACC examinations of Mr Bartlett to the CDPP

On 22 September 2011 the ACC provided the CDPP a lever arch file which contained 'confessional material' for the purpose of enabling the CDPP to disclose this material to Mr Bartlett as part of the initial disclosure process. This included the following transcripts of examinations:
•Examination of 24 October 2006; and
•Examination of 17 December 2009.
The ACC provided electronic copies of the 24 October 2006 and 17 December 2009 transcripts of examinations to the CDPP on 8 December 2011.
On or about 14 December 2011, the ACC provided the CDPP with disks containing the recordings of the 24 October 2006 and 17 December 2009 examinations to enable the CDPP to serve this material on Mr Bartlett as part of the initial disclosure process.
In response to the letter from the solicitors for Mr Bartlett dated 10 January 2012, the CDPP requested the ACC to provide it a copy of the following transcript of examination of Mr Bartlett:
•Examination of 10 December 2009.
The ACC provided the CDPP with a copy of the 10 December 2009 transcript of examination on 23 January 2012. This examination was disclosed as part of the initial disclosure process on 25 January 2012.
The statement of Mr Bartlett dated 24 October 2006 was originally provided to the CDPP on 18 March 2008. A subsequent copy of this same statement was included in a brief of evidence delivered to the CDPP under a letter dated 25 October 2010 and has thereafter remained in the brief.
This statement of Mr Bartlett was served upon him when he was formally charged in December 2011.
Again the examiner's non‑publication directions made under s 25A(9) of the ACC Act and the variation of those directions made by the CEO of the ACC under s 25A(10) have been provided to the solicitors for Mr Bartlett.

(b) Provision of ACC examinations of Mr Sayers to the CDPP

On 22 September 2011 the ACC provided the CDPP with transcripts of the following examinations of Mr Sayers:
•Examination of 24 October 2006;
•Examination of 10 December 2009; and
•Examination of 19 January 2010.
The ACC provided electronic copies of the 24 October 2006, 10 September 2009 and 19 January 2010 transcripts of examinations to the CDPP on 8 December 2011.
On or about 14 December 2011 the ACC provided the CDPP with disks containing the recordings of the 24 October 2006, 10 December 2009 and 19 January 2010 examinations to enable the CDPP to serve this material on Mr Sayers as part of the initial disclosure process.
In response to a letter from Mr Sayers' solicitors dated 10 January 2012, the CDPP requested the ACC to provide it with a copy of the following transcript of examination of Mr Sayers:
•Examination of 16 September 2005
The ACC provided the CDPP with a copy of the 16 September 2005 transcript of examination on 23 January 2012. This examination was disclosed as part of the initial disclosure process on 25 January 2012.
The CDPP has also informed the solicitors for Mr Sayers that it has not received a transcript or recording of the examination of Mr Sayers on 15 February 2010. However, the CDPP is aware that the ACC provided Mr Sayers' solicitors with a recording of the 15 February 2010 examination on 14 September 2010.
The ACC provided a copy of the undated seven page statement of Mr Sayers to the CDPP on 8 December 2011 for the purposes of enabling the CDPP to disclose this material as part of its initial disclosure process.
The statement of Mr Sayers dated 24 October 2006 was originally provided to the CDPP on 18 March 2008. A subsequent copy of that statement was included in a brief of evidence delivered to the CDPP under a letter dated 25 February 2010 and has thereafter remained in the brief.
The statement of Mr Sayers dated 15 February 2010 was originally provided to the CDPP on 8 July 2010 and has remained in the brief thereafter.
These statements were served on Mr Sayers when he was formally charged in December 2011.
The examiner's non-publication directions and the CEO's subsequent variations of non-publication directions have previously been provided to the solicitors for Mr Sayers.

(c) Provision of ACC examinations of Ms Grace to the CDPP:

On 22 September 2011 the ACC had provided the CDPP with a lever arch file which contained 'confessional material' for the purpose of enabling the CDPP to disclose this material to Ms Grace as part of the initial disclosure process. This included the following transcripts of examinations:
•examination of 1 July 2005
•examination of 29 November 2005
•examination of 25 October 2006
•examination of 24 May 2007
•examination of 27 September 2007
The ACC provided electronic copies of 25 October 2006 and 27 September 2007 transcripts of examination to the CDPP on 8 December 2001 as previous hard copy versions of these specific transcripts which were provided on 22 September 2011 were not in a form which could be disclosed.
On or about 14 December 2011 the ACC provided to the CDPP discs containing the recordings of 29 November 2005, 25 October 2006, 24 May 2007, and 27 September 2007 examinations to enable the CDPP to serve this material on Ms Grace as part of the initial disclosure process.
On 19 December 2011 the ACC provided the CDPP with a disk containing the recording of the 01 July 2005 examination to enable the CDPP to serve this material on Ms Grace as part of the initial disclosure process.
On 27 April 2012 the CDPP received disks containing the recording of a further examination of Ms Grace which had occurred on 9 December 2009. Shortly after receipt a disk containing the recording of the 9 December 2009 examination was served on Ms Grace as part of the disclosure process.
The signed statements of Ms Grace dated 25 October 2006 and 27 September 2007 were originally provided to the CDPP on 18 March 2008.
Subsequent copies of Ms Grace's statements were included in a brief of evidence delivered to the CDPP under letter dated 25 February 2010 and has thereafter remained in the brief.
These statements were served on Ms Grace when she was formally charged with the present offences in December 2011.
The various non-publication directions given by the examiner at the conclusion of each of Ms Grace's examinations and the variation of the non‑publication directions made by the CEO under s 25A(10) were also provided to the solicitors for Ms Grace.

Laying of charges

Each of the accused was formally charged with the present offences on 14 December 2011. It follows that some of the foregoing materials were disclosed by the ACC to the CDPP before any of the accused was charged and that the further materials were disclosed after the accused were charged.
However, the CDPP by letter of 11 October 2012 to the solicitors for each accused has stated clearly that it had read, considered and referred the following statements to its counsel prior to a decision being made to prosecute the three accused:
•statement of Mr Bartlett dated 24 October 2006;
•statements of Mr Sayers dated 24 October 2006 and 15 February 2010; and
•statements of Ms Grace dated 25 October 2006 and 27 September 2007.
The transcripts and discs of the examinations of the three accused by the ACC and any additional statements made by them to the ACC were provided by the ACC to the CDPP in order for the latter to discharge its disclosure obligations.

Other relevant historical information relating to the prosecution

The CDPP has disclosed that in May 2006, as a result of close inspection of documents, investigators became aware of the possibility that documents connected with the issue of units in the Barminco Unit Trust had been backdated. On 12 December 2006 the alleged co‑conspirator Thomson signed an induced witness statement in which reference was made to the backdating of minutes and the purpose for doing so. On 18 March 2008 the ACC provided a brief of evidence to the CDPP which included the statements of Bartlett and Sayers of 24 October 2006 and the induced statements of Grace of 25 October 2006 and 27 September 2007.
On 22 December 2008, Thomson made a lengthy induced witness statement. On 8 June 2009, Thomson made a further induced witness statement. On 27 February 2009, Thomson was charged with an offence against s 11.5 and s 134.2 of the Criminal Code (Cth). On 6 May 2010, Thomson pleaded guilty to an offence against s 135.4(3) of the Criminal Code (Cth) before McKechnie J in this Court and was sentenced by his Honour on 13 May 2010.
On 6 December 2010, Sayers was requested to attend the offices of the ACC for the purpose of being interviewed about various tax avoidance schemes in which he had participated during the years 1999 to 2004. Sayers attended on that date together with his legal representatives, his senior counsel at the time and his solicitor. Sayers stated that he had been advised by his legal representatives not to answer any questions. A prepared statement signed by Sayers was then handed to ACC investigators.
On 8 December 2010, Bartlett was requested to attend the offices of the ACC for the purpose of being interviewed about various tax avoidance schemes in which he had participated during the years 1999 to 2004. Bartlett attended on that date, together with his legal representatives, his senior counsel then acting and his solicitor. Bartlett stated that he had been advised by his legal representatives not to answer any questions. A pre‑prepared statement signed by Bartlett was then handed to ACC investigators.
A letter from the present solicitors for Mr Bartlett and Mr Sayers dated 20 January 2011 was sent to the CDPP enclosing, among other things, a submission that Bartlett and Sayers should not be prosecuted for any criminal offence.
On 14 December 2011, Bartlett, Sayers and Grace were each charged with an offence against s 135.4(3) of the Criminal Code (Cth) (later changed to s 135.4(2)).
From the foregoing it is apparent that all of the examinations of the three accused conducted by the ACC under its compulsory powers occurred before the accused had been charged with any offence. Similarly, all of the statements provided by the accused to the ACC were also made and supplied before any of the accused was charged with an offence.

The examiners' s 25A(9) directions

I have already described how, with two exceptions, at the end of each of the examinations of the several accused the examiner concerned made a direction under s 25A(9) of the ACC Act restricting publication of any of the information or materials obtained or produced in the course of the examination except as therein provided and authorised. Within the excepted and, therefore, permitted categories of persons to whom disclosure was allowed was any prosecuting authority, including the CDPP. Later some of these directions were varied by the CEO of the ACC acting pursuant to the powers conferred by s 25A(10) of the Act, but again these variations, while otherwise restricting publication of any information or materials obtained in the course of the examinations, excluded from that prohibition disclosure to any prosecution authority, including the CDPP and others which need not be mentioned.
Again, as earlier mentioned, the two exceptions to this course of procedure were the last two of the examinations of the accused, Ms Grace, where no such direction permitting disclosure of materials to the CDPP or others was made by the examiner concerned. In the first of these instances (Ms Grace's fifth examination) a direction was later made by the CEO of the ACC pursuant to s 25A(10) of the Act authorising disclosure to, among others, the CDPP. No such authorisation was ever made or varied in relation to the sixth and final examination of Ms Grace and, what is more, as previously mentioned, it is not suggested that anything arising in or in the course of that examination is material to the charges now before this court.
It would be repetitious to set out in full all the various directions made by the relevant examiners relating to all the examinations of each of the accused. Nevertheless, it is desirable that a representative example of such a direction should be reproduced. Accordingly, I set out below the material part of a non‑publication direction given by the examiner in the course of the compulsory examination of Ronald George Sayers on 15 February 2010:
Mr Sayers, I think I've said on a couple of prior occasions that I would give a non‑publication direction when your evidence concluded and I am now going to do that, and I give the direction under subsection (9) of section 25A of the Australian Crime Commission Act. I direct that the evidence given by Ronald George Sayers, the contents of the documents and the description of anything produced to the Commission during this examination, any information that might enable the witness to be identified and the fact that he has given evidence at this examination shall not be published except to the Chief Executive Officer, the Examiners and members of the staff of this Commission. Also, members of the staff of the Australian Taxation Office and any prosecution authority and the staff of such an authority for any matter including a prosecution for which they are responsible arising from this investigation, and further, I also include as an exception, your legal representative Mr Luscombe and any other legal adviser that you might engage to advise you in relation to these matters the subject of the examination.
The Commission's Chief Executive Officer or his delegate may vary or revoke this direction in writing but must not do so if it might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been and may be charged with an offence. Any publication in breach of this direction is an offence punishable under the provisions of the Australia Crime Commission Act and I'll just reinforce the fact that this direction does not preclude you from further speaking with Mr Luscombe and any other legal adviser that you might have in relation to these matters who you need to give instructions to and receive advice.
Again, as I have said, directions in substantially similar terms were given by the examiner conducting each of the other examinations except in relation to the two last examinations of Ms Grace.
Again, it is unnecessary to reproduce fully the content of all the variations of the non‑publication directions subsequently made by, or on behalf of, the CEO of the ACC under s 25A(10) of the Act. However, the following variation dated 17 July 2009 published on behalf of the CEO in respect of the examination of Peter Mervyn Bartlett on 24 October 2006 is a representative example. It provides:
VARIATION OF ACC NON‑PUBLICATION DIRECTIONS
I, PETER BRADY, Senior Legal Adviser of the Australian Crime Commission (ACC), a person authorised by the Chief Executive Officer's delegation under section 59A of the Australian Crime Commission Act 2002 (the ACC Act), acting pursuant to subsection 25A(10) of the ACC Act, HEREBY VARY the directions made under subsection 25A(9) of the Act at the examination of the witness listed in Schedule 1 by authorising publication of information to the persons and for the purposes as outlined in Schedule 2, being satisfied that this variation will not prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
SCHEDULE 1
Witness: Peter Mervyn BARTLETT
Directions varied: Directions given by ACC Examiner Sage on 24 October 2006
SCHEDULE 2
Information to be published
1.The evidence given by each witness (the evidence).
2.The contents of any documents or things produced to the Examiner (the documents or things).
3.Any information that might enable the witness to be identified or the fact that the witness has given evidence to the Examiner (the attendance information).
Authorised Publication
4.Subject to paragraph 5 below, the evidence, the documents or things and the attendance information may only be published:
a.In any form to the ACC Chief Executive Officer, ACC Examiner and members of the staff of the ACC;
b.to the following, provided the evidence shall only be published in the form of a summary, transcript (including an edited transcript) or audio recording:-
i.any law enforcement agency, the Australian Taxation Office or Australian Securities and Investment Commission (and the staff of such agencies and lawyers engaged) for any matter within their jurisdiction;
ii.to any prosecution authority (and the staff of such agency and lawyers engaged), for any matter within their jurisdiction, including for a purpose related to any criminal prosecution or, proceeds of crime or confiscation proceedings, arising out of the ACC's investigation (related proceedings);
iii.to any Court presiding over related proceedings; and
iv.to any lawyer representing any person the subject of any related proceedings (subject to any ACC claims of public interest immunity);
c.by the witness to any Court in the course of a related proceedings.
5.Publication of the evidence, the documents or things and the attendance information shall remain subject to the limitations in subsection 30(5) of the ACC Act and public release may not occur except as permitted by a Court in relation to a related proceedings.
Dated 17th day of July 2009
Peter Brady
Senior Legal Adviser

Submissions of the applicants

Accordingly, it is apparent that the publications or disclosures of the evidence, documents and things obtained in the course of the respective compulsory examinations of each of the three accused by the ACC to the CDPP as has occurred in these cases were all done in compliance with and within the scope of the authority of the various directions given by examiners under s 25A(9) and/or the CEO of the ACC by variation of some of those directions under s 25A(10).

Nevertheless, the applicants contend that the examiners erred in making directions which permitted such disclosure and that the CEO of the ACC also erred in making variations of those directions which authorised such disclosures. The error attributed to the examiners and to the CEO by the applicants is failure to comply with the terms of s 25A(9) and (11) which direct that such publication should not be authorised or a direction varied or revoked if doing so might prejudice the fair trial of a person who has been or may be charged with an offence. Again, as earlier mentioned, it is submitted on behalf of the applicants that upon its proper interpretation, s 30 of the ACC Act in combination with the common law does not authorise any form of derivative use of statements or evidence or things produced by an examinee under compulsory examination who has properly invoked a claim that the answers given might incriminate him or her or expose him or her to a penalty as set out in s 30(4) and (5). In the submission of the applicants, even if the publication of the evidence, statements and other materials emanating from the compulsory examinations to the CDPP occurred in compliance with directions made by the examiners and/or the CEO of the ACC or were otherwise authorised by the ACC Act that would not prevent this court from granting a permanent stay of the present proceedings against the three accused if there were, in reality, a risk of prejudice to the fair trial of the accused on the present charge.
In support of the three applications for a permanent stay of this indictment counsel for the third accused, Ms Grace, makes the following main submissions:
•The conduct of the compulsory ACC examinations pursuant to s 25A of the Act has interfered with the administration of justice and the right to a fair trial.
•The publication of the compulsory ACC examinations pursuant to s 25A(9) and (11) of the ACC Act to the CDPP has interfered with the administration of justice and the right to a fair trial.
•The contravention of enmeshed safeguard provisions of s 30(4) and (5) (self‑incrimination) and 25A(9) and (11) within the ACC Act have meant that a fair trial cannot be afforded to Ms Grace.
•The subsequent reliance and use (derivative use) by the CDPP of ACC examinations in this prosecution have interfered with the administration of justice and prejudiced the right to a fair trial.
•The only adequate relief is the staying of the trial, otherwise an injustice will occur.
Counsel for Bartlett and Sayers base their application for a stay on an asserted 'right to silence', alternatively, privilege against self‑incrimination which is said to have been wrongly infringed by the sharing of information between the ACC and the CDPP which, so it is submitted, would create an unfairness to the accused which cannot be ameliorated by judicial direction or otherwise at any trial and/or alternatively would bring the administration of justice into disrepute generally.
In further support of these contentions, counsel for Bartlett and Sayers submit:
(a)There is a basal principle at common law, accepted in Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188, that compulsory examination by the Executive of a person charged with a pending criminal offence may constitute a contempt of court and must justify restraint of the questioning anticipated in the examination.
(b)The ACC Act provides expressly by s 30(5) for a direct use immunity of answers given, documents or things produced compulsorily in a situation where the witness claims privilege against self‑incrimination but must still answer the question or produce the document or thing and that it is established on the authorities that such a person is also protected against derivative use or the risk of such use of the evidence given by that person at the ACC examination by the body responsible for prosecuting a criminal offence. It is submitted that support for these propositions is to be found in Australian Crime Commission v OK and R v CB; MP v The Queen. In substance, the proposition is that so long as a prosecution authority is prevented from access to, or derivative use of, evidence obtained from an examinee which has been obtained under the compulsory powers under s 30 by non‑publication orders made under s 25A(9) there would be no risk to the fair trial of the examined person, but if, because no adequate non‑publication direction is given under s 25A(9) preventing such material from reaching the prosecution authority or if such a direction is made and not complied with and relevant information has been communicated to the prosecution, a permanent stay of the prosecution should be ordered because, by then, prejudice to the fair trial of the person examined would be inevitable and irretrievable. According to these submissions, these consequences apply and a stay should be ordered whether or not at the time of the compulsory examination by the ACC the person examined had been charged with a criminal offence or not.
(c)In such circumstances, the person examined compulsorily under s 30 of the ACC Act is obliged to forego his or her privilege against self‑incrimination and disclose evidence relevant to their defence to pending or potential criminal proceedings, such examinee is entitled to have that information kept confidential from the prosecution so as to ensure their right to a fair trial.
(d)Finally, it is submitted that where Bartlett and Sayers are confronted by a prosecution authority which has had access to material ordinarily protected by the privilege against self‑incrimination but which has been compulsorily obtained, this court ought not permit a trial of the charged offence. The submission is that such a prosecution should be stayed as an abuse of process in the sense that to proceed will create patent unfairness to the accused that is impossible of amelioration and, secondly, would bring the administration of justice into disrepute and/or lead to an erosion of public confidence because the court's processes may lend themselves to repression and injustice: Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237; Rogers v The Queen (1984) 181 CLR 251 [16] and Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23.
From these submissions for Messrs Bartlett and Sayers it is apparent that the propositions advanced effectively include, as a component, the contention that notwithstanding that the privilege against self‑incrimination is removed for an examinee undergoing compulsory examination under s 30 of the ACC Act and, where invoked, is replaced by an entitlement to direct use immunity under s 30(4) and (5), nevertheless the privilege remains to the extent that no derivative use of the evidence in respect of which privilege had been invoked may be permitted to a prosecuting authority which may prosecute the examinee for an offence pending or which may subsequently be brought which would involve any indirect use of the evidence so compulsorily obtained.
These submissions effectively include the proposition that any such evidence obtained from an examinee under these powers of compulsory examination must be protected by suitable non‑publication directions made by the examiner under s 25A(9) and that these must not be varied by the CEO under s 25A(10). By doing so the fair trial of the examinee on an offence charged or which may be charged may be prejudiced.
It is in this special sense that counsel for the first and second accused maintained that there is a derivative use immunity provided by the ACC Act notwithstanding observations in the authorities, to be noticed later, rejecting the existence of any such derivative use immunity.
As already seen, counsel for Ms Grace advanced essentially the same proposition but expressed differently by submitting that the Act provides 'enmeshed safeguard provisions' for the examinee by a combination of s 30(4) and (5) and s 25A(9) and (11).
It would seem to be basic to these submissions that any disclosure by the ACC to prosecution authorities of evidence compulsorily obtained from an examinee under s 30 which would not have been obtained but for the removal of the examinee's right to refuse to answer questions or provide information because of common law privilege against self‑incrimination would axiomatically and inevitably result in the prejudice of the fair trial of that examinee who had been or might be charged with the offence.
Whether there is, indeed, any penumbral derivative use immunity of evidence so compulsorily obtained or, alternatively, whether in view of the partial abrogation of the rights of a person under such compulsory examination to refuse to answer questions or provide information because of common law privilege against self‑incrimination this means that, in the light of the statutory truncation of the common law privilege, disclosure of evidence or information so compulsorily obtained to prosecution authorities would, by its very occurrence, cause prejudice to the fair trial of the examinee are questions that now require closer consideration.

Submissions of the CDPP

The prosecution relies on the underlying statutory scheme for the operation of the performance functions of the ACC Act as described in A v Boulton [2004] FCA 56; (2004) 204 ALR 598, affirmed on appeal in A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420; (2004) 207 ALR 842. The ACC Act confers coercive powers upon the ACC including the power to conduct compulsory examinations in the course of its investigation of serious and organised crime ‑ see Weinberg J at first instance in A v Boulton [9] ‑ [16]. It is notable that s 12(1) provides that when the ACC, in carrying out an operation or an investigation, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for that offence, the CEO must assemble the evidence and give it to the Attorney‑General of the Commonwealth or of the State or Territory as the case requires or to the relevant law enforcement authority. The CDPP, however, acknowledges that this and other similar obligations in the ACC Act are subject to any directions restraining publication of such evidence as might be made by an examiner or the CEO under s 25A(9) or (10) ‑ see now s 12(2) and s 59AA(1) note 2 introduced by the 2012 amendment. The powers and functions of the ACC as specified in s 12(1) of the Act were amended in 2012 to include subsection (2) which made the preceding subsection subject to any relevant direction given by an examiner under s 25A(9). In the explanatory memorandum to the amending Bill, the Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth) it was stated that this amendment was intended to make explicit the conclusion reached by the Federal Court in Australian Crime Commission v OK (see page 52) but which is declaratory of previous law as accepted in Australian Crime Commission v OK.
It has long been accepted that s 30 of the ACC Act abrogates an individual's common law privilege against self‑incrimination ‑ Mansfield v Australian Crime Commission (2003) 132 FCR 252, A v Boulton at first instance and on appeal; Hak Song Ra v Australian Crime Commission (2004) 138 FCR 51; X v Australian Crime Commission (2004) 139 FCR 413; (2004) 212 ALR 596; CC v Australian Crime Commission [2005] FCA 754; Australian Crime Commission v OK; Stoddart v Boulton (2010) 185 FCR 409; R v CB; MP v The Queen; and R v Seller & McCarthy [185] ‑ [187].
In A v Boulton, at first instance and on appeal, it was expressly decided that there is no prohibition on derivative use of answers given in compulsory examinations conducted by the ACC. The following passages from the reasons of Weinberg J in A v Boulton at first instance are significant in the light of the applicants' submissions. His Honour referred to the decision of the Hong Kong Court of Final Appeal in Lam Chee-ming v The Queen [1991] 2 AC 212 where there had been an extensive examination of the position at common law regarding the privilege against self‑incrimination and the significance and extent of the privilege where it had been to an extent abrogated by statute and then said at [119]:
The court referred to the 'strong persuasive authority' of the decision of the High Court of Australia in Hamilton v Oades (1989) 166 CLR 486; against the survival of any derivative use immunity in cases where the privilege has been abrogated by statute. In that case, when construing s 541(12) of the Companies (New South Wales) Code, a provision similar to s 145(3A) [of the Hong Kong Court of Final Appeal ordinance], Mason CJ observed that the section was significant in three respects. First, it expressly abrogated the privilege. Second, it provided for a use immunity. Third, it explicitly empowered the court to give directions concerning the conduct of the examination. His Honour noted that the section gave no protection to the witness against the use in criminal proceedings of derivative evidence. He said (at CLR 496; ALR 6–7):
… by enacting s 541 without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out of his own mouth — the principal matter to which the privilege is directed. [emphasis added]
Then, further, with reference to the submissions advanced on behalf of the accused Sayers and Bartlett that the asserted derivative use immunity arose and that this court can and should intervene to prevent any such exploitation of evidence obtained from an examinee under compulsory examination even if the examinee had not then been charged with any offence, it is instructive to note the observations of Weinberg J at [144] ‑ [145] where his Honour said:
As regards contempt, it seems clear that this offence is not ordinarily committed unless and until the curial process has been commenced. In the absence of any such process, the use of coercive powers, pursuant to statute, would not generally be described as having a tendency to interfere with the due administration of justice.
Mr Faris [counsel for the applicant] also sought to invoke principles of fairness and justice in support of his contention that the Hammond principle should be applied to protect his client from questioning. The answer to that contention seems clear. If his client is ultimately charged, and the prosecution seeks to lead evidence derived from the answers given in response to coercive questioning, the trial judge will have available ample power to exclude such evidence if he or she is satisfied that it was unfairly obtained. The fact that evidence is admissible does not necessarily mean that it will, ultimately, be admitted. The absence of an express prohibition upon the admissibility of derivative evidence in the Act does not mean that the applicant is entitled to refuse to answer questions put to him.
Then, as now, there is no mention of any kind, still less any prohibition to be found, in the ACC Act dealing with the so‑called derivative use of information, documents or things produced by an examinee under compulsory powers in the course of a s 30 examination.
The decision of Weinberg J was unanimously upheld on appeal in A v Boulton. The leading judgment in that case was given by Kenny J with whom Beaumont and Dowsett JJ agreed. When speaking of the effect of s 30 of the ACC Act her Honour said at [66]:
… It is manifestly clear that the Act deprives a witness of the benefit of the privilege against self‑incrimination, although it provides limited compensation in the form of the use immunity in s 30(5) of the Act providing the conditions in s 30(4) are satisfied.
Her Honour went on to explain how this conclusion was confirmed by the legislative history of the Act, by the second reading speech of the Minister on the National Crime Authority Legislation Amendment Bill 2000 and the revised explanatory memorandum for the Bill. This examination then led her Honour to observe at [72]:
In summary, for the reasons stated, I conclude that no error is shown in the judgment of the primary judge and that, as a matter of necessary implication, the Act abrogated any privilege against self‑incrimination that the appellant might otherwise have had in an examination under the Act. As the primary judge observed, the decision of the Hong Kong Court of Final Appeal in Lee Ming Tee, particularly at 4 HKCFAR 133 at 166 ‑ 170, is entirely consistent with the conclusion I have reached …
The passage cited from the judgment of Mason CJ in Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 repays further attention not only because it provides substantial reasons why protection against derivative use has not been attempted as there are problems in making any such doctrine effective but because the significance of the absence of any express protection against derivative use of evidence obtained under compulsory powers and in abrogation of an examinee's privilege against self‑incrimination was well understood for many years ‑ see the reference to the absence of any prohibition on the admissibility of derivative evidence in Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281, 312 (Murphy J). A longer excerpt of the passages of Mason J in Hamilton v Oades speaking of s 541 of the Companies (New South Wales) Code at 496 is as follows:
Of course the section gives no protection to the witness against the use in criminal proceedings of derivate evidence, ie, evidence which is obtained from other sources in consequence of answers given by the witness in his examination. It would be difficult for Parliament to provide for specific protection against derivative use of such answers given by a witness. Immunity from derivative use tends to be ineffective by reason of the problem of proving that other evidence is derivative: Sorby at 312. But in any case, by enacting s 541 without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out of his own mouth ‑ the principal matter to which the privilege is directed. Thus the legislative resolution of the competition between public and private interest is to provide for a compulsory examination and to give specific protection in relation to the principal matter covered by the privilege but not otherwise, except insofar as a judge, in the exercise of a wide statutory discretion, may see fit in the particular circumstances of the case to give directions as to the matters to be enquired into.
The absence of any derivative use immunity for evidence obtained compulsorily in an examination under s 30 of the ACC Act was accepted by Garling J in R v Seller & McCarthy [188] when his Honour observed that it is clear from the legislation, and the decisions which have been examined, that there is no statutory prohibition on derivative use of any of the material obtained from a compulsory examination. I agree, with respect, that this is so and that this conclusion is fatal to the submission advanced by counsel for the accused Sayers and Bartlett, in its broader sense, that the ACC Act contains or preserves for an examinee any derivative use immunity for evidence obtained in the course of a compulsory examination under s 30 when resort to the privilege against self‑incrimination under s 30(4) has been invoked.
Accepting the observations of Hamilton v Oades and A v Boulton this conclusion then turns attention directly towards the nature and extent of the obligation of the examiner to give a direction under s 25A(9) restricting publication or dissemination of the evidence or information so compulsorily obtained, especially in the light of the discretion reposing in the examiner as to the nature of restrictions on publication and the persons to whom publication may be made which the examiner specifies. A consequent issue also calling for consideration is the significance, if any, of a direction given by an examiner under s 25A(9) or by the CEO under s 25A(10) which unduly and inappropriately extends the range of the persons or the extent of the evidence which may be disclosed following a s 30 examination. It is here that one needs to engage with the notion of what senior counsel for Ms Grace terms the 'enmeshed safeguard provisions' of s 30(4) and (5) and s 25A(9) and (11).

In this respect, my attention was helpfully drawn to submissions which have been made by the Commonwealth to the High Court in the hearing of X7 v Australian Crime Commission and which were endorsed and adopted by the CDPP in this hearing. There it had been submitted that the obligation of an examiner under s 25A(9) to give a direction that any evidence given before the examiner, or the contents of any document or description of any thing produced to the examiner, and any information that might enable a person who has given evidence before the examiner to be identified, not be published is one of a combination of measures by which the ACC Act limits the extent to which such an examination may affect a pending criminal trial in ways other than through the direct use of evidence that the accused was compelled to provide. The submission went on to stress that the examiner has no discretion in this regard and that the obligation to give a direction under s 29A(9) does not rest on an evaluative judgment by the examiner: Australian Crime Commission v OK [108] and R v CB; MP v The Queen [103]. In X7 the Commonwealth had submitted that a failure by an examiner to give any adequate directions under s 25A(9) would be remediable by, at least, mandamus issued pursuant to s 75(v) of the Constitution or s 39B(1) of the Judiciary Act 1903 (Cth). The submission continued that the requisite content of a direction under s 25A(9) depends upon the facts of a particular case and referred to the pending appeal in the New South Wales Court of Appeal in R v Seller & McCarthy which was said to concern the necessary content of such a direction.
Further, in those same submissions in X7 the Commonwealth advanced the contention, also supported by the CDPP in the present case, that unlike the legislative regime in issue in Hammond v The Commonwealth, the ACC Act operates to ensure that an examination into the subject matter of pending criminal charges does not create a real risk to the administration of justice. In particular, the protection conferred by the directions that are required to be given under s 25A(9) of the ACC Act where failure to do so might prejudice the fair trial of a person charged with an offence directly addresses the circumstances that appear to have underpinned the injunction in Hammond v The Commonwealth. The operation of s 25A(9) is achieved by giving directions which will ensure that the conduct of the pending trial is not affected by the examination; ABC v Sage [2009] FCA 170; (2009) 175 FCR 319 [29] ‑ [31]; Australian Crime Commission v OK; R v CB; MP v The Queen [97] ‑ [100] and [110] and that the prosecution gains no unfair advantage from the examination which would not have been available had the examination not occurred. To the extent that any risk remains, it is so slight as to be outweighed by the public interest in the ACC performing its statutory function such that there is no contempt of court ‑ Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (the BLF case) [1982] HCA 31; (1982) 152 CLR 25 (the BLF case).
In the present case, however, by contrast, all directions made under s 25A(9) and (10) authorised the supply of the evidence taken from the accused under compulsory examinations to prosecuting authorities, including the CDPP, and it is the fact that the evidence has been so supplied. Also, in contrast to the position being addressed in the X7 case, none of the examinees before the ACC in the present case had then been charged with any offence. This latter fact distinguishes the present case from the situation examined in Hammond v The Commonwealth where the examinee faced compulsory examination before a Royal Commission where there was no privilege against answering questions which might incriminate at a time when he had already been charged with an offence in relation to a matter which became a focus of enquiry by the Royal Commission. In that case, even though the witness's answer would not have been admissible against him, an order was made restraining his examination before the Royal Commission on the grounds that a continuation would interfere with the due administration of justice.
It is at this point that the significance of a compulsory examination conducted before the commencement of any criminal prosecutions against an examinee, as contrasted with an examination commenced or continued after the commencement of criminal proceedings against the examinee, becomes significant. As was said in the BLF case by Gibbs CJ at [53] ‑ [54]:
Although a commission of inquiry may lawfully be instituted and conducted into the guilt or innocence of individuals, the position will be different if its proceedings interfere with the course of justice and amount to a contempt of court. The very issue of the commission will be invalid if done with the purpose of interfering with the course of justice (Clough v Leahy (1904) 2 CLR at 161 ‑ 162 and McGuinness v Attorney‑General (Vic) (1940) 63 CLR at 100 ‑1)) and the case suggested by Latham CJ in McGuinness v Attorney‑General (Vic) (at 85) of the establishment of a Royal Commission to inquire into the question whether an offence had been committed, when prosecution for the offence was already pending, seems to be an example. However, the continuance of the proceedings of a commission may amount to a contempt of court even though the commission was not established with any intention to interfere with the course of justice: see Clough v Leahy (at 161), McGuinness v Attorney-General (Vic) (at 84 ‑ 5) and Johns & Waygood Ltd v Utah Australia Ltd [1963] VR 70 at 73 ‑ 5. For example, if during the course of a commission's inquiries into allegations that a person had been guilty of criminal conduct, a criminal prosecution was commenced against that person based on those allegations, the continuance of the inquiry would, speaking generally, amount to a contempt of court; the proper course would be to do as Townley J did in Royal Commission Into Certain Crown Leaseholds (No 2) [1956] Qd R 239 and adjourn the inquiry until the disposal of the criminal proceedings. It was argued in the present case on behalf of the State of Queensland, which intervened in the proceedings, that the public conduct of an inquiry by a Royal Commissioner duly appointed cannot in itself amount to a contempt of court. This argument was supported by a reference to Lockwood v Commonwealth (1954) 90 CLR 177 where Fullagar J said: 'No court could hold, in any circumstance which I find it possible to envisage, that what is expressly authorised by or under a statute is a contempt, and it is a rule of the common law that the common law itself gives way to statute law.'
However, for reasons which he went on to explain, Gibbs CJ doubted the application of the observations of Fullagar J in Lockwood v The Commonwealth (1954) 90 CLR 177 and stated that the fact that there is a statutory power to hold an inquiry does not mean that the inquiry is 'expressly authorised' within the meaning of the passage cited from Lockwood v The Commonwealth.
By contrast, in the present case it is evident from the specific language in s 25A(9) and (11) of the ACC Act that the legislation envisages that examinations may be conducted after a person has been charged. Plainly, there is a power and a function of the ACC to investigate matters relating to federally relevant criminal activity (s 7A(c)) and, having done so, to provide evidence so obtained of an offence against a law of the Commonwealth or of a State or Territory to the appropriate law enforcement authority and to prosecuting authorities (s 12(1)).
The power to conduct compulsory examinations under s 30 is part of the function of the ACC and it is to be expected that the performance of these functions will, in many cases, lead to the institution of criminal charges against persons, including examinees, by responsible prosecuting authorities, whether federal or State. These are important tasks in the public interest which Parliament has entrusted to the ACC and directed it to perform. I see no reason to suppose that these powers cannot be exercised nor evidence so obtained used by prosecuting authorities in the prosecution of persons charged or that to do so might inevitably prejudice the fair trial of a person who has been or may be charged with an offence.
This obligation to protect the fair trial of a person who has been or may be charged with an offence set out in s 25A(9) and (10) is not limited to the fair trial of the examinee but extends to any person may who may be charged or has been charged with an offence. Recognition of this reveals the wider function which such directions may be required to serve. If, for example, A has been, or may be, charged with an offence, the circumstances of which are within the scope of an inquiry being conducted by the ACC, and then the ACC conducts compulsory examinations of others, X, Y and Z, each of whom is involved in the commission of the offence or suspected of being involved but has not then been charged and, in the course of their compulsory examinations and after invoking the process available under s 30(4), X, Y and Z variously give evidence incriminating not only themselves (subject to direct use immunity) but A as well then, depending upon the circumstances, a direction under s 25A(9) permitting the disclosure of the evidence of X, Y and Z to the prosecutors conducting the case against A might prejudice the fair trial of A on that charge. Whether it would or not would be a question for determination by the examiner, especially if the examination of X, Y and Z produced hearsay or was rendered of doubtful credibility because of malice or self‑interest by the examinee.
It follows from this that it is very difficult, I would venture to suggest almost impossible, to conclude that the disclosure of evidence obtained by the ACC in a compulsory examination under s 30 and in accordance with the directions given by an examiner under s 25A(9) or by the CEO under s 25A(10) necessarily or probably would lead to the prejudice of the fair trial of a person who may be charged with an offence even if that person is the examinee. To conclude otherwise would be to reinstate the amplitude of the common law privilege against self‑incrimination which the statute itself has expressly abrogated.
It follows from the structure of the ACC Act and the 'enmeshed safety provisions of s 30 and s 29A' that a determination of whether publication of the evidence from the compulsory examination might prejudice the fair trial of a person who may be charged with an offence is an exercise which must be performed in a situation where it is accepted that the examinee's privilege against self‑incrimination has been abrogated and that Parliament has made provision for the results of that examination to be disclosed to, among others, prosecution authorities and in a manner and to an extent determined by the discretion of the examiner. Similarly, any judicial review of the exercise of the discretion by the examiner to direct how and to which persons the results of the examination may be published should not be approached on the basis that the examinee has some prima facie right to have publication to those bodies prevented. The purpose of such examinations includes, after all, that of obtaining evidence which may ultimately be used in connection with a prosecution subject to the direct use immunity conferred by s 30(5) and to any directions excepting from the general prohibitions against publication made by an examiner under s 25A(9) or the CEO under s 25A(10). It follows from this that there would need to be some specific or tangible factor, more than merely the partial abrogation of the privilege against self‑incrimination, which would justify a direction prohibiting disclosure to law enforcement officers or to prosecution authorities by an examiner under s 25A(9) or (10).
So far I have undertaken this examination and analysis based upon the provisions of the ACC Act itself and of the authorities so far cited without regard to the conclusions reached by Garling J in R v Seller & McCarthy. However, in view of the central prominence given to that decision by the applicants and an obligation to follow that decision unless satisfied that it is plainly wrong, I must consider it closely. But it is first necessary to consider more fully the two decisions upon which Garling J placed major reliance, namely Australian Crime Commission v OK and R v CB; MP v The Queen.
Australian Crime Commission v OK concerned the very question of whether an examinee being compulsory examined by the ACC under s 30 could be compelled to answer questions which related directly to matters on which he had been charged in a State criminal court. That was an appeal from a decision of Mansfield J at first instance who had, in the circumstances, restrained the ACC examiner from asking the examinee questions which directly related only to the matters the subject upon which he had been charged or from disclosing information directly relating to that charge. The Full Court of the Federal Court, Emmett and Jacobson JJ (Spender J dissenting) allowed the appeal and concluded that the ACC Act permits such an examination to continue on a subject matter relating to a pending criminal charge so long as the protective prohibitions contemplated by s 25A(3) and (9) had been put in place. Their Honours held that in this way the ACC Act achieves a balance between the competing public interests in the investigation of federally related criminal activity and the right of an accused person to a fair trial. Section 25A(3) directs that such an examination must be held in private and that the examiner may give directions as to the persons who may be present during any part of the examination. Their Honours also held that such an examination would only constitute a contempt of court if it were established that there was a real risk as opposed to a remote possibility that justice would be interfered with. At [105] ‑ [107] of the judgment of the majority their Honours said:
That is to say, before the court should intervene, the tendency of the proposed examination to interfere with the course of justice must be a 'practical reality': A 'theoretical tendency' is not enough (see Hammond's case at 196.
In Hammond’s Case the High Court considered that, once it was accepted that Mr Hammond would be bound to answer questions designed to establish that he was guilty of the offence with which he was charged, there was a real risk that the administration of justice would be interfered with. While the examination would take place in private, and the answers may not be used in the criminal trial, the High Court considered that the fact that Mr Hammond had been examined, in detail, as to the circumstances of the alleged offence, was likely to prejudice him in his defence. The High Court considered that, if during the course of an inquiry into allegations that a person had been guilty of criminal conduct, a criminal prosecution were commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court. In those circumstances, the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings: see Hammond’s case at 198–9.
A significant difference between the circumstances of Hammond’s case and the circumstances of the present case is the regime that is now provided for in s 25A of the Commission Act. Under the Commission Act generally, and s 25A in particular, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness. The Commission Act provides its own statutory safeguards to avoid risk to the fair trial of such a charge. On its true construction, the Commission Act permits an examination to continue on a subject matter directly related to a pending charge so long as the protective prohibitions contemplated by s 25A(3) and (9) have been put in place. Such principle as might relevantly be drawn from Hammond’s Case is displaced by the express provisions of the Commission Act.
By contrast, Spender J (dissenting) did not consider that the decision in Hammond v The Commonwealth was distinguishable. His Honour said [7]:
In my opinion, it is not the inability of the prosecution or investigator of the criminal offence to know of the questions and answers which an Examiner compels of a witness, a result to which the confidentiality directions are directed, which ensures a fair trial and so does not amount to an interference with the due administration of criminal justice. Of course, the investigatory and prosecutorial personnel would, in any event, be precluded from using those answers, by virtue of the 'use-immunity' in s 30(4) of the Commission Act. It is the inquisition by the Executive, combined with the compulsion to answer, which constitutes an interference with the due administration of criminal justice.
This divergence of view evident in the judgment of Spender J can be traced back to the observations of Deane J in Hammond v The Commonwealth (206 ‑ 207) and has appeared in another dissenting judgment ‑ Federal Commissioner of Taxation v De Vonk (1995) 61 FCR 564 (561) (Foster J). However, the CDPP has submitted that there is no principle that a coercive inquiry into facts, matters or circumstances the subject of existing judicial proceedings necessarily involves an impermissible interference with the exercise of federal judicial power ‑ see BLF case at 71 ‑ 72, 95, 129 ‑ 131, 149 and 152 ‑ 155 and Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65; (1982) 152 CLR 460, 468 (Gibbs CJ) and 474 (Mason J). It was further submitted by the CDPP that the decision of Hamilton v Oades permits compulsory examination of a witness already charged with an offence where there was abrogation of the privilege against self‑incrimination but no protection against derivative use of the evidence. Clearly, there are difficulties in applying the decision in Hammond v The Commonwealth in the light of the subsequent decision in Hamilton v Oades but, more importantly, in view of the amendments to the ACC Act referred to in Australian Crime Commission v OK. There has even been reference to the difficulty in extracting a principle from the decision in Hammond v The Commonwealth by Basten JA in New South Wales Crime Commission v Lee [2012] NSWCA 437 [26].
In R v Seller & McCarthy Garling J observed at [190] with regard to Australian Crime Commission v OK that the effect of Hammond v The Commonwealth put in terms of more modern terminology is that the derivative use of material obtained in compulsory examination would be likely to prejudice a fair trial but the majority reasoned that the regime provided for by s 25A of the ACC Act would address this risk by confining not the questions to be asked of the witness or the answers to be given but, rather, the person or persons to whom the answers might be disclosed, and hence what derivative use might be made of those answers. His Honour therefore saw at least the potential for a restriction to be placed on derivative use of answers obtained through such a process of compulsory examination in this special sense.
It is therefore apparent that in Australian Crime Commission v OK Emmett and Jacobson JJ saw the protective provisions contemplated by s 25A(9) of the ACC Act as being designed for, and sufficient to achieve, protection for a compulsory examinee whose privilege against self incrimination has been overridden by the procedures applicable under a s 30 examination. In Australian Crime Commission v OK the examiner had in fact made a non‑publication direction which prevented the dissemination of the contents of the examination to the South Australian police who had charged the examinee or to the prosecuting authority: see [83]. Emmett and Jacobsen JJ observed that this direction qualified the authority of the CEO to disseminate that material under s 59(7) because to do so in the face of the examiner's discretion would be 'contrary to a law of the Commonwealth' and outside the authority conferred by s 59(7)(e).

RB v CB; MP v The Queen [2011] NSWCCA 274,

The applicants place considerable reliance upon this decision of the New South Wales Court of Criminal Appeal.
Both CB and MP were charged with an offence of conspiracy to manufacture an illegal drug. Three months after he was charged CB was subject to compulsory examination under s 30 by the ACC. His co‑accused, MP, was not so examined. A transcript of the examination was made in the usual way but was not supplied to the CDPP. In the course of that examination of CB the examiner had in fact made a non‑publication order [110] and the trial judge could not find that any of the information gathered at the examination had been disseminated [64].
On being indicted before the District Court of New South Wales both CB and MP applied for a permanent stay of the federal criminal proceedings brought against them. The District Court Judge granted a permanent stay to CB but refused the application of MP. In finding that the proceedings against CB should be stayed the District Court concluded that his compulsory examination by the ACC had constituted 'a serious interference with the administration of justice'. In the District Court when granting the stay for CB the trial judge held that the decision of the majority in Australian Crime Commission v OK was plainly wrong.
The CDPP appealed from the decision staying the proceedings against CB to the New South Wales Court of Criminal Appeal. MP also appealed against the refusal of the District Court to grant his application for a permanent stay.
In the New South Wales Court of Criminal Appeal the appeal by the CDPP was unanimously upheld and the stay ordered in favour of CB was set aside. Similarly, the appeal by MP against the refusal of a stay was dismissed. The leading judgment in the NSWCCA was given by McClellan CJ at CL and Buddin and Johnson JJ agreed.
In the course of his judgment McClellan CJ at CL said:
[97]… The ACC Act abrogates … the privilege against self‑incrimination (s 30(4)). However, by reason of the retention of 'use immunity' in s 30(5) of the ACC Act in relation to answers given at an inquiry over an objection based on self‑incrimination, and the confidentiality provisions in s 25A(9) and 29A of the ACC Act and designed to protect the fairness of trials of persons who have been or may be charged with an offence, it is clear that the ACC Act operates to protect the fairness and integrity of extant trials by preserving them from the effect of its qualification of the 'right to silence'.
…
[100]With respect to the ACC Act where an accused the subject of an extant charge is summonsed to appear at an examination under s 28 of the ACC Act but is protected against direct use of any answers given over an objection based on the privilege against self‑incrimination by reason of s 30(4) and protected from derivative views by reason of confidentiality directions given pursuant to s 25A(9) and s 29 of the ACC Act, there is no possible compromise of the accusatory system of criminal justice. The onus of proof still lies on the prosecution. The accused cannot be made to testify in or in connection with the trial to the commission of the offence charged. The accused's rights and privileges at the trial are preserved
…
[103]The purpose of the confidentiality obligations in s 25A(9) and s 25A of the ACC Act is to prevent the information obtained during the examination from being used by prosecuting or investigating authorities in the trial of a person who has or may be charged with an offence. Furthermore, where a failure to make such an order might prejudice the fair trial of such a person, there is no discretion as to whether such confidentiality obligations are to be imposed. Section 25A(9)(c) imposes that obligation.
…
[110]Accordingly, in my opinion, the conclusion of Emmett and Jacobson JJ in Australian Crime Commission v OK to the effect that a confidentiality direction made [under] sections 25A(9) and 29A of the ACC Act overrode the obligations and powers of disclosure of the CEO and the Board of the ACC in sections 12(1) and 59(7) of the ACC Act is correct. In the result, those directions having been made in relation to the examination of CB, he was effectively immunised from any direct or derivative use and the contents of his examination in his pending criminal trial
[111]Provided the knowledge of the proceedings in the Commission were adequately protected an accused person's entitlement to a fair trial in accordance with the adversarial process will be ensured. The situation is no different whether the time of the Commission hearing a charge has not been laid or the criminal process has commenced. The right to a fair trial will only be compromised if information relevant to the person's defence in any form, including any derivative information, is available to the prosecution.
And then later McLellan CJ said:
[128]Although I accept the question to be asked of the appellant during his examination relating to matters relevant to the charges, accepting as I do that the majority decision in OK should be followed, provided the information obtained was effectively protected as the Commission acknowledged it should be, the mere fact that an examination has occurred could not justify a permanent stay. Even if, and the evidence does not establish this fact, it was the case that questions were asked which required the appellant to disclose his defence, this would not of itself have the consequence that the appellant would be denied 'a fair trial'. Only if it can be shown that the relevant information has been, or that there was a real risk that it would be communicated to the prosecution, could it be concluded that the exceptional step of granting a permanent stay should be taken.
Both CB and MP applied to the High Court for special leave to appeal from this decision but their applications were refused. In delivering short reasons for refusing special leave Gummow J said, on behalf of himself and Crennan J at MP v The Queen; CB v The Queen [2012] HCA trans 162 (22 June 2012):
Having regard, in particular, to the terms of s 25A of the [ACC Act] and to what was said in paragraph 110 and 111 of the reasons of the Chief Judge at common law in the Court of Criminal Appeal, this is not an appropriate occasion to reconsider what was said in Hammond v The Commonwealth … and Sorby v The Commonwealth.
In R v Seller & McCarthy at [201] Garling J rejected the submission that he should place reliance on the decisions on the special leave applications and merely noted that he remained bound to apply the principles identified by the Court of Criminal Appeal in R v CB; MP v The Queen.
Unlike the position in R v CB;MP v The Queen the situation in the present case is that copies of the transcript of the examination of these three accused by the ACC were, by the directions made under s 25A(9), and as varied under s 25A(10), authorised to be distributed to prosecution authorities and have been so distributed.
At the hearing of this case counsel for the CDPP has submitted that in R v Seller & McCarthy Garling J wrongfully extended dicta from R v CB; MP v The Queen[110] and [111] to elevate s 25A to the role of constraining indirect use at the content of ACC compulsory examinations in particular by the means of restricting dissemination of that content to prosecuting authorities. Counsel for CDPP submitted that this is an unwarranted extension of the decision in Australian Crime Commission v OK. This submission is based on the point that in Australian Crime Commission v OK the examiner had, as already noted, made a non‑publication direction restricting publication of the results of the examination to the police or to the prosecuting authorities. According to the submission of the CDPP this direction itself became a law of the Commonwealth which overrode the authority of the CEO to disseminate under s 59(7) the results of the examination.
I can see a distinction between a prohibition contained in the operation of a direction given by an examiner under s 25A(9) which has statutory effect, on the one hand, and a judicial description of that fact as being an effective immunisation (of derivative use of contents of the examination) on the other but, for present purposes, I do not see that distinction as being in any sense material when considering the status or authority of the decision in either R v CB; MP v The Queen or Australian Crime Commission v OK.
The critical point for consideration remains whether or not when a person who has been compulsorily examined under s 30 and whose privilege against self‑incrimination has been abrogated, comes to be charged with an offence and the details of that examination, whether pursuant to and in conformity with a direction given under s 25A(9) or (10) or not, are supplied to prosecuting authorities involved in the examinee's trial, that would, of itself, constitute prejudice to that person's fair trial such as would justify the grant of a permanent stay. I have to accept that in [128] of R v CB; MP v The Queen, McLellan CJ at CL plainly contemplated that it would.
On this point, however, counsel for the CDPP on this present application submitted that in Australian Crime Commission v OK the Full Court of the Federal Court did not decide:
(a)that generally an examiner would be required by s 25A(9) to make such a direction in any case where failure to do so would allow dissemination of the contents of the examination of a prosecuting authority with respect to a charge already laid or with respect to a charge which might be laid in the future;
(b)that generally, s 25A(11) would prevent the CEO from varying or revoking an examiner's non‑publication order if to do so would allow dissemination of the contents of the examination to pass into the hands of a prosecuting authority with respect to a charge already laid or which might be laid in the future;
(c)what is the scope of the words 'might prejudice … the fair trial of a person who has been or may be charged with an offence' ‑ which constitutes the test in s 25A(9) and (11) of whether the examiner 'must give such a direction' and whether the CEO 'must not vary or revoke such a direction';
(d)in particular, whether the expression 'might prejudice … the fair trial of a person who has been charged or may be charged with an offence' would be engaged by the dissemination of examination contents to a prosecuting authority which could make the derivative use of such contents to formulate the Crown case, to gather other evidence and/or to anticipate the defences.
While I accept that the decision of the Full Court in Australian Crime Commission v OK does not decide any of those four points, subsequent events have moved on and the decision of the New South Wales Court of Criminal Appeal seems, with respect, to be a strong indication, (by dicta but not by ratio) that the first two of those points would likely be resolved in favour of the examinee and that what is within the scope of the words 'might prejudice the fair trial of a person who has been or may be charged with an offence' may certainly accommodate the disclosure to prosecution authorities of transcripts of compulsory examination proceedings of the accused subject, of course, to an evaluation of their individual significance in a particular case. The further submission in the present case by the CDPP was that the ratio decidendi of the decisions in each of Australian Crime Commission v OK and R v CB was only that the direction actually made by the examiner, accepting that it would be adhered to by the ACC, would prevent interference with the administration of justice of the type which was restrained in Hammond v The Commonwealth. Counsel submitted that it was not necessary for either of those two decisions to elevate s 25A(9) or s 25A(11) to a status where the subsections themselves, as opposed to any individual directions made thereunder, control or limit the obligations and powers of dissemination under s 12(1) and s 59(7) of the Act. That may well be so but the present case raises a situation which has not been examined in either of those authorities, of the contents of compulsory examinations being disclosed to the prosecution in conformity with a direction given by an examiner under s 25A(9) or as varied by the CEO under s 25A(10).
The problem posed by this scenario is that there is nothing in the record to reveal why the examiners considered it appropriate to make such directions, or for that matter why the CEO thought it appropriate to make such directions or variations authorising disclosure to prosecution authorities. Consequently, there is nothing to explain why the protection of the interests of the examinees in their rights to a fair trial which were regarded as reposing in a protected direction to be given by the examiner under s 25A(9) as in Australian Crime Commission v OK and in R v CB; MP v The Queen was not granted. The next and ultimate question is whether, in such circumstances whether the protection contemplated to emerge from a direction under s 25A(9) but which was not accorded means thatathe resulting situation is one in which the doctrine in Hammond v The Commonwealth can, or should be, invoked.
Some of those issues arose in R v Seller & McCarthy although there were some material differences but the result was that Garling J granted a permanent stay of the trials of the two applicants because of the disclosure of the results of the examinations to the prosecution authorities. One point of distinction may be that in R v Seller & McCarthy Garling J determined that subsequent directions under s 25(9) and variations made by the CEO under s 25A(10) were unlawful and ineffective with the result that the disclosures of the materials to the prosecution authorities which had occurred in that case were contrary to and unauthorised by the earlier directions of the examiners under s 25A(9) which had not specifically included prosecution authorities as within the excepted class of persons to whom disclosure of the results of the examinations could be made. At [203] in R v Seller & McCarthy Garling J epitomised the following principles as distilled from the authorities which had been examined. His Honour said:
From all of the authorities to which I have made reference, but in particular the cases of OK and CB, I draw the following conclusions:
(a)the privilege against self‑incrimination is an entrenched common law right which is deeply ingrained in the law;
(b)section 30 of the ACC Act abrogates that common law privilege;
(c)sections 30(4) and 30(5) of the ACC Act provide a limited compensation by retaining a protection against direct use of the evidence (or documents) obtained by compulsory process;
(d)section 25A of the ACC Act in general, and s 25A(9) in particular, protects against derivative use of the evidence (or documents) obtained by compulsory process where that derivative use might prejudice the fair trial of a person who may be charged with an offence;
(e)interference with justice by way of the prejudicing of a fair trial must be a practical, rather than a theoretical, reality;
(f)there is no practical reality that the course of justice and a fair trial would be interfered with, by reason only of the witness being required to answer questions, including disclosure of their defence, but only so long as an appropriate direction is in force under s 25A(9) which preserves the confidentiality of the examination; and
(g)the right to a fair trial will be compromised if information relevant to a person's defence in any form, including derivative information, has been, or there was a real risk that it would be, communicated to prosecution authorities [203].
Counsel for the CDPP in the present case expressly challenges the correctness of pars (d) and (g) of the foregoing propositions expressed by Garling J, counsel submits that they are plainly wrong and that I should not follow them. This is the situation at a time when the decision of the NSWCCA on appeal from this decision of Garling J has been heard and remains reserved and when the related, but not necessarily determinative, question whether or not the ACC may conduct compulsory examinations under s 30 of a person who has already been charged with an offence the details of which are likely to be the subject of the examination, remains the subject of a decision reserved by the High Court in X7 v The Australian Crime Commission & The Commonwealth.
I recognise, if I may say so with respect, strong arguments in favour of the submissions now being advanced by the CDPP that the statutory structure created by the ACC Act contemplates that the results of a compulsory examination of a person who may be charged with an offence may be disclosed to prosecution authorities even where publication might prejudice a fair trial of a person who has been or might be charged with an offence and that the scope of the nature and extent of the disclosure permitted in such a case is at the discretion of the examiner under s 25A(9) or CEO under s 25A(10). The problem with this argument, which is one clearly available from the terms of the statute itself, is that it appears to pay little regard to the factors which should guide the exercise of the discretion of the examiner or influence the range of disclosure to be permitted in a manner which will serve to advance or achieve the statutory purpose of protecting the examinee from suffering prejudice in the fair trial of the charge against him or her by any disclosure which is permitted within the scope of the statutory discretion. On the other hand, the decisions in Australian Crime Commission v OK; R v CB; MP v The Queen and R v Seller & McCarthy are decisions which a single judge must treat with the highest respect and which, if I may say so with deference, appear to identify a statutory purpose which the discretion reposing in the examiner under s 25A(9) or the CEO under s 25A(10) is designed to achieve, that is by preventing materials which so it seems to have been assumed, are very probably likely to be prejudicial if not inevitably so, from coming into the hands of prosecuting authorities charged with or involved in any way in the prosecution of the examinee.
With respect, the observations in those three cases contained in the passages relied upon by counsel for the applicants remain at some points contestable, such as, in particular, the assumption, or the readiness with which the inference is drawn, of prejudice to an ensuing trial that would result from disclosure of an examination product to prosecuting authorities. However, it seems to me if I may say so again with respect, that the justification for those assumptions or inferences has been found by the courts who have decided those cases in the doctrine expressed in Hammond v The Commonwealth. How much of that doctrine remains is, of course, a question for the High Court to decide but as these authorities plainly assume it may not all have been eradicated by the decisions of the High Court in Hamilton v Oades or Sorby v The Commonwealth .

Status of precedent

As the decision of Garling J in R v Seller & McCarthy relied upon by the applicants cannot, in any material sense, be distinguished from the events which have led to this case the question arises as to whether or not it should on this occasion be followed. Even more significantly, the decisions of the two intermediate Courts of Appeal in Australian Crime Commission v OK and R v CB; MP v The Queen or their considered dicta cannot be materially distinguished, so the question whether or not I must or should follow them is even more marked. Although a single Judge of this Court is not, strictly speaking, bound by a decision of a single Judge of another Supreme Court or Federal Court, or even by a decision of an intermediate Court of Appeal of another court, such as the Full Court of the Federal Court of Australia or the Court of Criminal Appeal of New South Wales, decisions of such Courts must receive great respect and consideration and should be followed unless I were to be satisfied that they were plainly wrong. Where the question for decision concerns federal legislation such as here, the Australian Crime Commission Act, which has uniform application in all the States and Territories, then the need to follow considered decisions of courts of other jurisdictions and certainly intermediate Courts of Appeal of other jurisdictions is all the more pressing. As was said by the entire court in Australian Securities Commission v Marlborough Goldmines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 where a court is applying Commonwealth legislation or interpreting uniform national legislation that is a sufficiently important consideration to require that an intermediate appellate court ‑ and all the more so a single judge ‑ should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.

This directive was repeated with emphasis in Farah Constructions v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135] where the court said emphatically that intermediate appellate courts and trial Judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Their Honours extended this principle also to non‑statutory law on the basis that there is a common law of Australian rather than of each Australian jurisdiction.
More so is this principle to be respected when, as here, it is known that the decision in R v Seller & McCarthy is presently under appeal, has been heard and that the decision on the appeal presently stands reserved by the New South Wales Court of Criminal Appeal. The same can be said of the fact that the decision in X7 v Australian Crime Commission and The Commonwealth is presently reserved by the High Court. Inevitably, the Court of Criminal Appeal of New South Wales will determine whether or not the decision of Garling J in R v Seller & McCarthy should stand and there is a distinct possibility that the decision in X7 may determine some, but not all, of the issues arising in this case.
Were I to disregard the decision of Garling J in R v Seller & McCarthy on the basis submitted to me on behalf of the CDPP that it is plainly wrong, even if I were to reach that conclusion, the possible consequence that in the near future the decision may be affirmed by the NSW Court of Criminal Appeal would produce a very unsatisfactory position. In that case, no stay having been ordered, this trial would proceed without there being any right of appeal from my decision (see Criminal Appeals Act 2004 (WA)) but in circumstances where any eventual decision based on a verdict of the jury after a very long trial might be highly prone to being set aside on appeal on the grounds that a stay of the prosecution should have been ordered. However, the other contingency is not without serious problems either. If I were to follow the decision of Garling J in R v Seller & McCarthy either because I was persuaded by the submissions of the applicants that the decision was correct or, alternatively, notwithstanding any hesitations, because I concluded that I was constrained to follow that decision by authority, then the result would be to stay these proceedings permanently. That decision would allow the CDPP to appeal to the Court of Appeal ‑ Criminal Appeals Act s 24(2)(c) ‑ but there would be little prospect that the appeal could be heard and determined without the trial presently arranged to commence on 4 February 2013 being adjourned. Even if there were to be an appeal from such a decision to the Court of Appeal then, without in any way, attempting to suggest or predict how that matter might be dealt with by the Court of Appeal, similar issues of precedent could well arise because of the decisions of the other intermediate appeal courts in Australian Crime Commission v OK and R v CB; MP v R. There is, therefore, no apparent easy or simple solution available in the present circumstances.
The safest course would seem to be to await the decision of the New South Wales Court of Criminal Appeal in R v Seller & McCarthy even if by doing so the commencement of the forthcoming trial on 4 February 2013 would have to be adjourned pending this decision. The decision of the High Court when it comes in the X7 case may clarify these issues and remove the uncertainties. There again, however, it will not be possible to know the effect and the consequences of the decision in that case until it is given.
It is obviously not for a single judge sitting at first instance to make determinations of what remains of the doctrine in Hammond v The Commonwealth, whether Australian Crime Commission v OK, or R v CB; MB v The Queen, or R v Seller & McCarthy should be followed or preferred or whether they are consistent with the decision of the Full Court in A v Boulton. Obviously, I have views about such choices but, at their highest, they amount to preferences recognising that strong arguments exist on both sides. I am not prepared to conclude that the decision in R v Seller & McCarthy is 'plainly wrong' or that the considered dicta of McLellan CJ at CL, agreed to by two other judges in the NSWCCA have elevated the protections of s 25A beyond the limit of their statutory application.
In this situation I consider that I should follow that line of authority unless and until it is overturned or another decision of an intermediate appellate court deals with the issue in a manner which clarifies the position and allows a clear choice to be made by a single judge. To revert to the language of civil actions, if this stay application bore any similarities to an application for an interlocutory injunction, I would readily acknowledge that the applicant's submissions raised serious questions to be tried and that the balance of convenience favoured, not a permanent stay but a limited stay for sufficient time to consider the result of the appeal to the NSWCCA from the decision of Garling J in R v Seller & McCarthy.

Subsidiary considerations

Without attempting to diminish points raised by the CDPP by undue brevity it is necessary to attend to the submissions that in the present case, the disclosure of the transcripts of the examinations for these three accused by the ACC to prosecution authorities did not occur until after each had been charged and that a prime purpose in obtaining the materials from the ACC by the CDPP was to allow the latter to comply with its disclosure obligations to the accused in the conduct of these present prosecutions. In this latter respect demands for the disclosure of these very materials had been made to the CDPP by the solicitors for Bartlett and Sayers. However, it is not the case that all the material which emerged from the examinations found its way to the CDPP after the charges had been laid. The written statements which had been prepared by the accused either by their solicitors or in conjunction with ACC staff and which were then produced when the accused were being examined were, it has been expressly acknowledged, supplied to the CDPP and their prosecuting counsel before final decisions to charge the accused had been made. Furthermore, the directions which had been made by the examiners initially did not prohibit disclosure to the prosecution authorities, at least not for any reason other than allowing disclosure to be facilitated in the course of an eventual prosecution. Even where disclosure directions were not expressly made by the examiner (in the case of Ms Grace's examinations) the subsequent variation of those directions by the CEO under s 25A(10) were not suggested to be motivated by, or limited to, implementation by the CDPP of disclosure obligations.
Similar submissions were addressed to, but rejected by, Garling J in R v Seller & McCarthy where his Honour observed at [246] - [251]
… disclosure of the transcript of the examinations to the CDPP must have prejudiced, or else have been highly likely to have prejudiced the fair trial of Mr McCarthy. The only reason for supplying the transcripts to the CDPP was to enable their derivative or indirect use at trial. Otherwise, it was entirely unnecessary for transcripts to be passed on.
Although at one point in time, it appears that the CDPP required the transcripts for the purpose of pre-trial disclosure, a moment's pause and reflection would indicate clearly that the CDPP did not require them for that purpose. Pre‑trial disclosure could readily have occurred of the transcripts of Mr McCarthy by the CDPP arranging with the Crime Commission for that body to send them directly to the lawyers for the accused. The CDPP did not have any indispensable role to play in this purely administrative exercise.
In short, the only basis for the transmission of the transcripts and other material was to enable their derivative or indirect usage against Mr McCarthy. Any such indirect usage must have been likely to have prejudiced a fair trial.
Then, when dealing with the same issues in respect of the applicant, Seller, his Honour said at [251]:
But for the same reasons as I have earlier articulated with respect to Mr McCarthy, such dissemination was likely to impact adversely on a fair trial for Mr Seller, and was not authorised by the ACC Act.
I hasten to acknowledge that whether or not that disclosure was authorised by the ACC Act remains now a contentious issue as does the consequences of the disclosure even if authorised. While those issues remain unresolved and subject to appeal I do not consider that I should at this stage rely on them to distinguish the present case from the line of authority relied upon by the applicants.
A series of further derivative submissions were advanced by counsel for the CDPP to support refusal of the present applications for a stay. These included:
(a)The submission that is now beyond argument that s 30 of the ACC Act abrogates the right to silence.
(b)There is nothing to support, either in the legislative text or elsewhere, the proposition that transmission of compulsorily obtained material would infringe any rights of the accused or would be unfair.
(c)That in the present case there is no evidence at all upon which any inference could be drawn that any of the examinations was ordered or conducted when charges were about to be laid or that the examination summonses were issued in contemplation of laying criminal charges.
(d)It is a misconception to contend that where an examinee may be charged with an offence that the examination of that examinee may be relevant to their ultimate defence on that charge or even if so would be to their prejudice.
(e)That the ACC Act allows for derivative use of information obtained from a compulsory examination and that s 25A(9) and (10) should not be interpreted from any standpoint that this is impermissible.
(f)That there are material differences in the principles applicable to applications for a permanent stay of criminal proceedings and applications to restrain examination or further questioning of examinees before enquiries such as a s 30 ACC examination.
As to these, I say that I accept the first and the third and with some qualifications the fourth and the sixth of these submissions but for reasons already given I consider that the second and part of the fourth and to some extent the fifth, of these propositions remain unresolved. However, the current weight of authority which I consider that I should follow, even if strictly speaking I am not obliged to do so, favours to a degree yet to be determined, the contentions of the applicants.

Basis upon which the stay applications have been conducted

This consideration of the issues raised in the submissions put to me on these three stay applications has not, at least so far, descended to a proposition that, notwithstanding that as a matter of law the various materials from these compulsory examinations which were disclosed by the ACC to the CDPP in conformity with directions made by examiners or by the CEO under s 25A(9) or (10), the particular content or features of some of the information means that prejudice has occurred or will occur if the prosecutions are allowed to continue ‑ prejudice of such a kind that should result in permanent stays upon the principles discussed in Dupas v The Queen; Jago v The District Court of New South Wales; Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117.
This was an approach adopted by all counsel in common as being more likely to allow the principal issues arising to be identified and determined without the need for lengthy or detailed examination of evidence obtained from the compulsory examinations and attempting to assess the potential significance or prejudice of the disclosure of this for any of the accused. It was also, in part, a product of the existence of a number of other interlocutory applications in this prosecution by the accused for the production of documents on subpoena or the disclosure of further information by the prosecution or from other sources which, so the initiating motives for these applications have assumed, may assist the accused in contending that the information obtained from the examinations or some of it has been used or was intended to be used by the prosecution in a manner which would prejudice the fair trial of the accused. Those applications for the production of documents or other information; disputes over claims for privilege or other access to documents remain pending. At the moment, at least, unless they are withdrawn or determined examination of the significance of these latter propositions sought to be advanced by the accused is not fully possible. Accordingly, this decision should not be regarded as any determination that the actual details of the materials disclosed by the ACC to the prosecution pursuant to these authorities have or have not, independently of the issues argued and yet to be determined, resulted in a dismissal of the applications. Should that aspect of the matter be pursued by any of the accused it may be necessary to consider the extent, if any, to which it remains open.
In these circumstances, therefore, I consider that the orders which the court should make are:
1.That there be a temporary but partial stay of each of these prosecutions until further order of the court pending the delivery of the decision of the New South Wales Court of Criminal Appeal on the appeal to that court from the decision of Garling J in R v Seller & McCarthy [2012] NSWSC 934, or until further order.
2.That there be liberty to apply to any person to set aside or vary the terms of this stay on 72 hours' notice to all other parties.
This would mean that consideration would need to be given to whether or not the trial presently listed to commence on 4 February 2013 should be adjourned. I will hear submissions from counsel upon that matter at the earliest opportunity.