Bartlett v The Queen (No 10) - [2014] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BARTLETT -v- THE QUEEN [No 10] [2014] WASC 277

CORAM: EM HEENAN J

HEARD: 28 JULY 2014

DELIVERED : 30 JULY 2014

FILE NO/S: INS 107 of 2012

BETWEEN: PETER MERVYN BARTLETT
First Applicant
RONALD GEORGE SAYERS
Second Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Procedure - Application for partial stay of prosecution - Prosecution by CDPP of two persons on joint charge of conspiracy with intention of dishonestly causing a loss to a Commonwealth entity - Compulsory examination of both accused in the course of investigation by ACC - Compulsory examinations conducted long before accused were charged - No privilege against self-incrimination in the course of the ACC compulsory examinations - Disclosure of transcripts of compulsory examinations by ACC to CDPP - Australian Crime Commission Act 2002 s 25A(9) - Whether disclosure of examinees' transcripts may prejudice the fair trial of a person who may be charged with an offence - Whether the fair trial of the applicants may be prejudiced - Whether disclosure of examinees' transcripts was a departure in a fundamental respect from basic procedure for a criminal trial - Whether the disclosure of transcripts shifted the balance of power in favour of the prosecution, contrary to the purpose of s 25A(9) so that a trial at which the prosecuting counsel and solicitors were aware of the contents of the examinations would be a departure in a fundamental respect by having the prosecution armed with the evidence of the accused person obtained under compulsion - Application for stay of proceedings unless or until new prosecuting counsel and solicitors are engaged to conduct the prosecution who have no knowledge or access to the transcripts of the accused's compulsory examinations - Discretionary factors - Miscarriage of justice

Legislation:

Australian Crime Commission Act 2002 (Cth)
Criminal Assets Recovery Act 1990 (NSW)
New South Wales Crime Commission Act 1985 (Repealed)

Result:

Applications for partial stay of prosecution dismissed.

Category: A

Representation:

Counsel:

First Applicant              :     Mr M C Boyce
Second Applicant          :     Mr D A Staehli SC
Respondent:     Mr P Roberts SC & Mr A L Troy

Solicitors:

First Applicant              :     Clifford Chance
Second Applicant          :     Clifford Chance
Respondent:     Director of Public Prosecutions (Cth)

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
Bartlett v The Queen [2012] WASC 503
Bartlett v The Queen [No 6] [2013] WASC 304
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hammond v The Commonwealth (1982) 152 CLR 188; (1982) 152 CLR 188
Lee v New South Wales Crime Commission [2013] HCA 39
Lee v The Queen [2013] NSWCCA 68
Lee v The Queen; Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252
QAAB v Australian Crime Commission [2014] FCA 747
R v Bartlett [No 5] [2013] WASC 132
R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 272 FLR 144
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (BLF case) [1982] HCA 31; (1982) 152 CLR 25
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92

EM HEENAN J: By application dated 4 July 2014 the accused, Peter Mervyn Bartlett and Ronald George Sayers, apply for, among other relief, an order that there be a temporary stay of this prosecution 'in accordance with the High Court's decision in Lee v The Queen; Lee v The Queen [2014] HCA 20; (2014) 308 ALR 252 pending the engagement of new prosecuting counsel and other CDPP personnel who are not privy to any evidence given to the Australian Crime Commission by the accused persons'.
This application also seeks other orders and directions relating to the admissibility of, or the effect of, certain proposed evidence intended to be adduced by the prosecution at the trial. I dealt with the applications relating to the admissibility or effect of the proposed evidence by oral reasons for decision given at the hearing of this matter on 28 July 2014. These reasons deal only with the application for the temporary stay of the prosecution, the decision on which I then reserved until today.

Background

There is a long history relating to earlier applications for a stay of this prosecution which, at those times, included two other accused. I have given judgments in relation to those earlier applications for a stay in a series of decisions which, after granting an initial temporary stay, resulted in the applications for a stay of the prosecution being refused. Those decisions are Bartlett v The Queen [2012] WASC 503, 20 December 2012; R v Bartlett [No 5] [2013] WASC 132, 16 April 2013; and Bartlett v The Queen[No 6] [2013] WASC 304, 15 August 2013.
Those reasons contain a detailed account of the background; the charges laid against these two accused; the earlier compulsory examinations of each of them by an Australian Crime Commission (ACC) examiner pursuant to s 30 of the Australian Crime Commission Act 2002 (Cth); directions made by the examiner or by a delegate of the ACC authorising disclosure of the transcripts of the examinations to, among others, the Commonwealth Director of Public Prosecutions (CDPP); other statements made by the accused (not the result of compulsory ACC examinations) to the ACC; the use of the disclosed examination transcripts made by officers of the CDPP and their counsel, long after the examinations, in order to consider what particular charge or charges might be laid against the accused and one other examinee; the provision of the examination transcripts to the prosecution team in order for the Crown to comply with its obligations of full disclosure of relevant materials to the accused in the early stages of the prosecution; and the subsequent production (under a claim of privilege) of copies of the transcripts to this court by annexure to an affidavit of the accused's solicitor, in support of applications for interlocutory relief: R v Bartlett [No 5] [57], [71], although as determined in that last decision that affidavit of Mr Luscombe became the subject of a suppression order and a determination that the privilege attaching to the accused in respect of those transcripts had not been waived.
The previous hearings of the earlier application for a stay of proceedings proceeded on the footing that there had, indeed, been disclosure of some at least of the transcripts of the compulsory examinations of these two accused to the CDPP and to the prosecuting solicitors and counsel. As recorded in [57] of R v Bartlett [No 5] those accused then contended that the CDPP has conceded that the evidence given by Messrs Bartlett and Sayers to the ACC has been used derivatively by the CDPP, quoting a letter of 11 October 2012 from the CDPP, which includes a passage:
The CDPP wishes to make it plain that it has read, considered and referred the following statements to its counsel prior to a decision being made to prosecute your clients:
-statement of Mr Bartlett dated 24 October 2006;
-statements of Mr Sayers dated 24 October 2006 and 15 February 2010; and
…
The CDPP were provided with the examinations of your clients and any additional statements which were made as a result of or in connection with ACC examinations in order to discharge its disclosure obligations subsequent to a decision to charge your clients with an offence under s 135.4 of the Criminal Code (Cth).
The present application has proceeded on the same footing, namely, that the transcripts of the compulsory examinations of each of the accused conducted by the ACC long before either was charged were provided to the CDPP and were available to, and are still available to, the solicitors for counsel conducting this prosecution. Indeed, counsel for the prosecution has clearly acknowledged that those transcripts have been read by counsel for the prosecution and that, entirely apart from any other reason, this was inevitable in light of their disclosure by the affidavit of the defendant's solicitor already mentioned.
I proceed, therefore, on the basis that the transcripts of the compulsory examinations of the two accused before the ACC have been disclosed to, and remain available to, the present counsel and solicitors for the prosecution at this trial. I emphasise, however, that unlike the situation in Lee v The Queen [2014] HCA 20 the disclosure of those transcripts to the CDPP was authorised by and in accordance with directions made by the examiners at each examination pursuant to s 25A(9) of the ACC Act.
My ultimate reasons for refusing the earlier application for a permanent stay of the trial against these two accused and two other co-accused are set out in Bartlett v The Queen [No 6] particularly at [78], to the effect that there was 'no identification of any actual or potential prejudice to any of the accused by proceeding with the trial in circumstances where the prosecution is in the possession of the results of the compulsory examinations' so that there was, accordingly, no material risk that the fair trial of either accused may be prejudiced.
The trial of these two accused, together with their co-accused, Gregory John Dunn and Deborah Jeanne Grace, proceeded before me sitting with a jury for a period of nearly 11 weeks, from 2 September to 13 November of 2013. At the end of the trial the co-accused Grace was found not guilty and acquitted, and the co‑accused Dunn was found guilty and was convicted. The jury, however, could not agree on a verdict in respect of either of the present two accused, Bartlett or Sayers, and, consequently, the jury was discharged and a new trial of these two accused ordered.
The retrial of Messrs Bartlett and Sayers is now listed to commence on 4 August 2014. The charges against them remain, essentially, the same except that an amended indictment has been filed over the previous indictment. The indictment as now amended presents charges against these two accused only, but alleges that the conspiracy of which they are charged as being parties was a conspiracy including Messrs Dunn, Thomson, Bartlett and Sayers, as distinct from the earlier allegation which included a contention that Ms Grace also conspired as alleged. That amendment has followed the acquittal of Ms Grace and the conviction of Mr Dunn. Otherwise, the charges, in all essential respects, remain the same.
No additional evidence in support of the applications for a stay of the present prosecutions has been adduced by either applicant but each points to the decision of the High Court of Australia in Lee v The Queen [2014] HCA 20, which was delivered on 21 May 2014 as representing a significant new exposition of the law on this subject which warrants this fresh stay application. They further contend that the significance of the decision in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, which was referred to in my decision in Bartlett v The Queen [No 6] at [17], [18], [26] and [32], [33], [38], [39], [40], [76] and [79] has been extended and enhanced by Lee v The Queen [2014] HCA 20, which overturned the decision of Lee v The Queen [2013] NSWCCA 68 upon which I had placed reliance in Bartlett v The Queen [No 6] - see [69], [73], [74] and [77]. They submit that all this leads to the consequence that the present application should be determined on the principles now authoritatively established in Lee v The Queen [2014] HCA 20, and that there is no impediment to entertaining and determining the present application because of the earlier decision made on a like application in R v Bartlett [No 6].
The applicants have also submitted that there is a difference between the present application and the former application, in that the former sought a permanent stay of the prosecution whereas the present application only seeks a partial stay pending the appointment of new counsel and solicitors who have no knowledge of or access to the transcripts of the accused's compulsory examinations before ACC. This, they submit, is a species of relief which was contemplated by the High Court in Lee v The Queen [2014] HCA 20 as being, at least potentially, a suitable response to the circumstances which had arisen in that case. No express reference to a stay on condition that the prosecution team would be changed is to be found in the reasons in Lee v The Queen[2014] HCA 20 except for an allusion at [44] that, in the circumstances which had arisen by the commencement of the trial the trial judge could have ordered a temporary stay while another prosecutor and other DPP personnel, not privy to the evidence, were engaged. However, the expectation that the conduct of the retrial which the High Court then ordered would be conducted in circumstances involving an application for a temporary stay of the prosecution pending the appointment of an entirely new prosecution team was clearly envisaged by the court, as emerges from the transcript of the hearing of the appeal, Lee v The Queen [2014] HCATran 69 (3 April 2014) at 72 - 75, especially per French CJ at 75.
As to the issue of whether or not it is open for the court to consider this present application for a partial stay in circumstances where a similar, but not identical, application was made previously and dismissed, the submission for the applicants is that the court is able to entertain and consider the present application, notwithstanding the earlier decision, and should do so if, in the light of the law as most recently determined by Lee v The Queen [2014] HCA 20, it is likely that a different decision would be made on this occasion. The applicants also submit that it is open to them to make an application for a stay of the prosecution pursuant to s 90 of the Criminal Procedure Act 2004 (WA) at any time, and to make successive applications if the circumstances are warranted. No submission to the contrary is made by the prosecution, nor did the prosecution submit that I was precluded from reconsidering this matter in the light of the circumstances which have now arisen.
It is accepted by all the parties that all the evidence relevant to this application is that which was adduced on the previous applications and that the primary facts as found on those previous applications should be accepted again on this occasion. As there has been no objection to this course, I will proceed on that footing.

Suggested new approach

In substance, the submissions for the applicant emphasise that in R v Bartlett [No 6] the approach which I took to determining whether or not there should be a stay of the prosecution as sought was to undertake an examination of the events in order to determine whether there was any actual or potential prejudice revealed to any of the accused by proceeding with the trial in circumstances where the prosecution is in possession of the results of the compulsory examinations, leading to the conclusion that no identifiable prejudice had been shown or was likely. I accept that it was that conclusion which led to the dismissal of the earlier application for a stay.
The applicants now submit that in a case where the applicants' trial would be altered 'in a fundamental respect by the prosecution having the applicants' evidence before the ACC in its possession' the determination of whether or not there has been or may be a miscarriage of justice does not fall to be decided by reference to whether there can be assumed to be some 'practical unfairness' in the conduct of the applicants' defence affecting the result of the trial but whether the very nature of the criminal trial and its procedural requirements has been altered to such a degree as to necessitate a conclusion that the trial and the prosecution system will not proceed according to law.
On that approach, so the applicants' submissions proceed, the effects of the disclosure of the examination material derived from the compulsory examination are not significant or determinative. Rather, the alteration of the system of trial which provides for a prosecution to be conducted on evidence lawfully obtained by the prosecution, or which, according to law, may be in their possession, will be subverted if the prosecution has access to evidence which could not have been obtained by the prosecution, nor compelled from an accused who enjoys the privilege against self-incrimination, except by a statutory process of compulsory examination which contains its own requirements for the protection of incriminating material derived from the compulsory examinations by ensuring that it is not published or disclosed if it might prejudice the fair trial of the examinee.
Adopting certain observations in the judgment in Lee v The Queen [2014] HCA 20, the applicants submit that the transcripts of the examinations of Messrs Bartlett and Sayers before the ACC should never have been provided to the CDPP, or at least not to the solicitors and counsel directly involved in the conduct of the prosecution, and the fact that they were so provided reveals that the protections intended to be achieved by restrictions on disclosure of that evidence under s 25A(9) of the ACC Act have not been applied. The implication in this submission is that the directions made by the examiners permitting disclosure of the transcripts of the examinations of Messrs Bartlett and Sayers to the CDPP and its officers should not have been made or, if made, should have been more restrictive and designed to prevent an disclosure of, or access to, that material by the solicitors and counsel responsible for conducting this prosecution. It will be necessary to examine those submissions and the passages in Lee v The Queen [2014] HCA 20 relied upon to support them in more detail later.

Chronology

Although the evidence and findings of fact contained in the previous decisions to which I have referred in [4] have been adopted in this decision, it may be useful to repeat, briefly, some of the chronology of events leading to this prosecution.
The compulsory examinations of the accused Bartlett by the ACC occurred on two occasions, namely:
•24 October 2006 and
•10 December, adjourned to and continued on 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'. A statement by Bartlett had been drafted and settled in conjunction with the ACC investigators on or about 24 October 2006. That statement, signed by Bartlett, was tendered at the first of his examinations.
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 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'. At his examination on 16 September 2005 an undated signed copy of a statement by Mr Sayers provided to the ACC by his solicitors was tendered. A later statement of Sayers, drafted and settled in conjunction with the ACC investigators on or about 24 October 2005, was later 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.
The transcripts of Bartlett's examinations, either in documentary or electronic form, were provided by the ACC to the CDPP in September and December of 2011. Electronic or documentary copies of the transcripts of Mr Sayers' examinations were provided to the CDPP on 8 and 14 December 2011. Fuller details of these disclosures are found at [31] - [59] of Bartlett v The Queen [2012] WASC 503.

Again as set out in Bartlett v The Queen at [60] each of the accused was formally charged with the present offences on 14 December 2011. Consequently, some of the ACC examination materials were disclosed by the ACC to the CDPP before either of the accused was charged and the further materials were disclosed after those accused were charged.
It is apparent from this chronology that Mr Bartlett's two examinations occurred in October 2006 and December 2009 and that Sayers' examinations occurred in October 2006, December 2009 and January 2010. The disclosure of the materials by the ACC to the CDPP did not, therefore, occur until at least 22 or 23 months later.

Submissions by the applicants

In reliance upon Lee v The Queen [2014] HCA 20, the applicants submit that the non-publication directions given by the NSWCC following the Lees' examinations should have operated to protect those accused from dissemination of their compelled testimony to the team of persons charged with the task of prosecuting them and that this was so even though the compelled testimony was given before those accused were charged. This submission contends that dissemination to the prosecution team in the Lees' case was in breach of the accusatorial nature of the criminal process recognised in X7 v ACC. Further, the submission proceeds, that the protection of a fair trial of an accused person envisaged by the terms of s 13(9) of the New South Wales Crime Commission Act 1985 (repealed) is regarded as applicable to s 25A(9) of the ACC Act (Cth) - QAAB v Australian Crime Commission [2014] FCA 747 [34] and [37] (Logan J).
This, so it is contended, is sufficient to show that as a result of the prosecution being armed with the appellant's evidence there has been a miscarriage of justice in the eyes of the law which, in the Lees' case, resulted in the quashing of their convictions without the court embarking upon a determination of whether there had been some 'practical unfairness' shown as affecting the result of the trial. Again echoing the reasons in Lee in the High Court, the present applicants contend that a trial under such circumstances would be altered in a fundamental respect by the prosecution having the applicant's evidence before the ACC in its possession. Considerable reliance was placed on observations in Lee at [46] where their Honours said:
In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to his case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges …
It is, perhaps, pertinent to note that in the Lees' case one of the appellants was examined by the NSW Crime Commission on 26 November and 1 December 2009. A search warrant was executed in his premises on 7 December 2009 and, after analysis of the materials seized, he was charged in May 2010. The second of the appellants, S W Lee, was present at the execution of the search warrant on 7 November 2009 and was then and there charged with firearms offences. He was examined on 16 December 2009, at which time charges against him and his father relating to the supply of prohibited drugs were imminent. He was also charged in May 2010.
It was acknowledged by the prosecutor in the Lees' case, at a pre-trial directions hearing, that the material received by the prosecution (unauthorised) from the NSWCC examinations, while not admissible, 'gives us a bit of an idea where they might be heading …' and provides '… at least a possible scenario for where the defence might suggest that there is some innocent explanation about, not only the money in the unit, but they don't know anything about drugs …': see Lee v The Queen [2014] HCA 20 at [10]. In the NSW Court of Appeal the Crown prosecutor who had the conduct of the prosecution against the Lees at their trial was cross‑examined to a limited extent. The effect of this was said to be [15]:
… he agreed that it was 'interesting' and 'informative' to know what the defence might say. He said that the transcripts of the evidence given before the Commission gave the prosecution some knowledge of what might be a defence in relation to the cash, and that other material from the Commission suggested that what might be relied on by the first appellant as an explanation might not be truthful. Answers given by the second appellant before the Commission must also have been of assistance to the prosecution in its preparation of the case. It is neither necessary nor appropriate to detail those answers.
No evidence of any corresponding character about the potential use or effect of the transcripts of the compulsory examinations of Messrs Bartlett or Sayers before the ACC was adduced or obtained in the present case. Nor did any such evidence emerge at any of the hearings of the earlier application for a stay of proceedings in this prosecution. The first trial before the jury was conducted and completed without any submissions or objections being raised by the applicants that, for any identified reason, either was prejudiced by the procedure which had been followed. However, with regard to this last point, I note that, from Lee v The Queen [2014] HCA 20 [42], at their trial the Lees had failed to object to the apparent possession by the prosecution of evidence from the Commission, which Basten JA considered to be fatal to their success on the appeal: Lee v The Queen [2013] NSWCCA 68 [163]. That approach was not accepted in the High Court where the decision was that there was such a major flaw in the procedure adopted that a miscarriage of justice inevitably occurred without the need for proof or identification of any practical unfairness to either accused.
Responding to these submissions, counsel for the Crown draws to attention a line of authority unchallenged by X7 or by Lee v The Queen [2014] HCA 20, to the effect that a person may be subjected to compulsory examination, without the benefit of privilege against self‑incrimination by the ACC or by similar authorities, including a Royal Commission, so long as that person has not been charged with any offence involving matters which are or may be the subject of the examination, or at least before any such charge is imminent: Hammond v The Commonwealth (1982) 152 CLR 188; (1982) 152 CLR 188; X7 v Australian Crime Commission; A v Boulton [2004] FCA 56; (2004) 204 ALR 598, affirmed on appeal by A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420, and expressly accepted by Bathurst CJ in R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 272 FLR 144 [81]. See also Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 and Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (BLF case) [1982] HCA 31; (1982) 152 CLR 25, especially per Gibbs CJ at [54].
This led to the further submission by the Crown that the practical effect of Lee v The Queen [2014] HCA 20 is to treat a compulsory examination of a witness before the NSW Crime Commission, without the benefit of privilege against self‑incrimination, very soon before that person was charged with a criminal offence arising out of facts which were the subject of the examination, as tantamount to, or to be assimilated with, the position of a person required to be examined before such a Commission who had, by that time, been charged with an offence.
With respect, I do not see that that comparison is apposite. The principle to be derived from the authorities, and now established by X7, is that in the absence of the clearest expression of legislative intention to the contrary, provisions such as s 30 of the ACC Act do not authorise the compulsory examination of a person who has already been charged with an offence on matters or topics which are related to or the subject of pending charges. The High Court in Lee v The Queen did not hold that the Lees could not be, or should not have been, compulsorily examined by the NSW Crime Commission but, rather, that the products of their examinations should not have been provided to the counsel and solicitors conducting the ensuing prosecutions. As previously stated, the supply of the transcripts of the Lees' examinations to the prosecuting authorities had not been authorised, or properly authorised, by the NSW Crime Commission.
A further feature of the facts in Lee v The Queen, in both the NSW Court of Criminal Appeal and in the High Court, is that it was acknowledged by the prosecution that the possession of the transcripts of the examination may be expected to provide some assistance or advantage to the prosecution notwithstanding that their contents were inadmissible.
Counsel for the Crown also referred to Lee v New South Wales Crime Commission [2013] HCA 39, which is a decision concerning the same Lees but dealing with whether or not the Lees could be made subject to compulsory examination under s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW) when charges in relation to related offences were then still pending against them. In the first instance, the Supreme Court of New South Wales had refused to make an order for the Lees' compulsory examination on the basis that examination would expose them to questioning about matters relevant to criminal charges being instigated against them. The NSW Crime Commission then appealed to the Court of Criminal Appeal of NSW against the refusal of the trial judge to make a compulsory examination order. By the time the appeal had come on for hearing, the Lees had each been convicted of relevant offences with appeals pending while other charges were still pending against one of them. The NSW Court of Criminal Appeal allowed the Commission's appeal and ordered that both Lees be examined on oath before a Registrar concerning their relevant affairs. From that decision the Lees appealed, by special leave, to the High Court. By a majority of four to three, their appeal was dismissed (French CJ, Crennan, Gageler and Keane JJ agreeing and Hayne, Kiefel and Bell JJ dissenting). This conclusion was reached, by the majority, as a matter of statutory interpretation of the relevant provisions of the Criminal Assets Recovery Act 1990 (NSW) and was reached notwithstanding the earlier decision in X7 v Australian Crime Commission.
The majority included Keane and Gageler JJ, who had not been members of the Court in X7. In joint reasons Gageler and Keane JJ held that the relevant power conferred by the NSW statute was to make an order that requires a person to give answers and produce documents which might incriminate him and that the Supreme Court could order such an examination of a person against whom criminal proceedings have been commenced but not completed, where the subject matter of the examination will overlap the subject matter of those proceedings. In Lee v NSW Crime Commission their Honours observed that the making of such an order does not give rise to a real risk of interference with the administration of justice by reason only that the subject matter of the examination will overlap with the subject matter of such criminal proceedings. In doing so, their Honours said:
[323]There is a variety of ways in which, as a matter of practical reality, the examination on oath of a person against whom criminal proceedings have been commenced may have a tendency to give rise to unfairness amounting to an interference with the due course of justice in a particular case. The deprivation of a legitimate forensic choice available to the person in those proceedings may be one of those ways. However, we are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination. The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring that the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt.
[324]The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle and is not consistent with Hamilton v Oades.
Keane J, but not Gageler J, was a member of the bench sitting in Lee v The Queen [2014] HCA 20. Those observations of Keane and Gageler JJ in Lee v NSWCC were not questioned, doubted or expressly rejected in Lee v The Queen. Reference was made in those reasons to Lee v NSWCC at [32] - [33] as authority for the propositions that it is for the prosecution to prove the guilt of an accused persons and that this principle remained even if the privilege against self-incrimination is lost and that the prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. This proposition is regarded as an aspect of the accusatorial nature of a criminal trial within our system of criminal justice. That suggests that Lee v NSWCC was endorsed and approved.
It would appear to follow that in Lee v The Queen [2014] HCA 20 the Court concluded that it should be inferred from the unauthorised disclosure of the products of the prior compulsory examinations of the Lees to the prosecuting authorities responsible for the conduct of their trial that this necessarily implied that the receipt of those examinations may assist the prosecution to prove guilt and that access to those transcripts may assist the prosecution in discharging its onus of proof. As already observed, in Lee v The Queen [2014] HCA 20 at [43], French CJ, Crennan, Kiefel, Bell and Keane JJ unanimously held that the appeal did not fall to be decided by reference to whether there was proof of some practical unfairness to the prejudice of the accused at the trial but, rather, whether the appellants' trial was altered in a fundamental respect by the prosecution having the appellants' evidence before the Commission in its possession. This finding appears to suggest that possession by the prosecution of the product of compulsory examination of the Lees, without the benefit of the privilege of self‑incrimination, by itself necessarily and perhaps irrefutably demonstrated prejudice to the fair trial of those accused. It is, of course, entirely evident that the Justices in Lee v The Queen did not express the result or the reasons for it in those terms and that they expressly rejected the need for proof of some form of practical unfairness. Yet, as the decisions in X7 and R v Seller; R v McCarthy show, the protection which statutory provisions such as s 25A(9) of the ACC Act are intended to provide, and do provide, is for the prevention of any prejudice to the fair trial of a person who has been or may be charged with an offence (compare s 13(9) of the New South Wales Crime Commission Act 1985 (repealed)). It is therefore apparent that it is the potential for prejudice to be caused to the fair trial of an accused by unauthorised or inappropriate disclosure of the compulsory examination product to certain, but not all, persons which is the object to be achieved and which is the safeguard provided by the legislature attendant upon such compulsory and coercive examinations.
No information was put to this Court about how, in a practical sense, the resolution of the issues examined in Lee v The Queen was to be determined before the retrial which the High Court ordered. The implication is that this was to be resolved either at a directions hearing or on the determination of a stay application before the Judge appointed to conduct the retrial which, so it seems to be implied, might result in a new prosecution team of solicitors and counsel being appointed to conduct the prosecution at the retrial. Nevertheless, the disclosure of those materials to the prosecuting authorities and the knowledge thereby gained by certain officers of the DPP cannot be undone or erased. It may be isolated or quarantined, and new personnel brought in to conduct the prosecution who have no knowledge of or access to the materials distributed, in that case wrongly, from the compulsory examinations.
A question may arise as to how far the isolation and the quarantine should reach. Should it reach to police officers or investigators who have knowledge of the results or contents of the compulsory examinations and who may be witnesses at the retrial? Should it reach to investigators or prosecutors involved in the investigation or prosecution of suspected offences of persons other than the examinees who may have been involved in or connected with the offences alleged against these examinees? Should it extend to clerical staff and/or senior officers of the DPP who became aware of the contents of the compulsory examinations who, in the case of senior staff, may be responsible for the oversight of the prosecution being conducted by the new team? It is true that these questions are, at the moment, hypothetical and in some instances may be difficult to resolve. Uncertainty about some of them was noticed by Logan J in QAAB v Australian Crime Commission at [39] - [40]. However, at least in relation to one aspect of them, counsel for the present applicants did not suggest that an officer of the ACC in the present case, who was aware of the contents of the compulsory examinations of Messrs Bartlett and Sayers before the ACC, and had received and read and who has access to transcripts of those examinations, and who was a witness for the prosecution at the first trial of these accused, would in any way be prevented from giving evidence at this retrial or, for that matter, assisting in its prosecution.
The submission for the applicants was that, for present purposes, it was unnecessary to explore or determine the breadth of the necessary isolation or quarantine of those who had received and were aware of the results of the compulsory examinations of Messrs Bartlett and Sayers beyond the actual counsel and solicitors who appeared for the prosecution at the retrial. Nevertheless, implicit in this stance is a tacit acceptance that the degree of isolation and quarantine of personnel with knowledge of the compulsory examination product is, at least to some extent, dependent upon the effect or potential effect which that knowledge may have or may appear to have on the ability to achieve a fair trial according to law.
It may be necessary for the ACC to conduct such a compulsory examination or examinations long before the laying of any charges or any particular charges is intended. Indeed, it may often be the case that the laying of any charges is not decided upon until long after a particular examination or series of examinations is conducted and other investigations pursued. According to a submission made by counsel for the prosecution, at the hearing of the earlier stay application, in such instances it would be very difficult, if not impossible, for an examiner conducting such investigative examinations to determine, when making a direction under s 25A(9), whether authorised disclosure of the examination product to a particular person or persons, including prosecution authorities, may prejudice the fair trial of an examinee because at that point the examinee may not be regarded as a person who may be charged with an offence. If one accepts the submissions for the present applicants, there would appear to be only two ways of dealing with such a situation.

One solution to the dilemma implicit in the submissions for the applicants is that in every case where there is a compulsory examination of a witness under s 30 of the ACC Act the examiner must make a direction under s 25A(9) that the evidence or transcripts of the evidence at the examination should not be disclosed to any prosecution authority, or at least to any prosecution authority who may then, or in the future, become responsible for conducting a prosecution against the examinee for an offence arising from the facts which were the subject of the examination. As a possible solution to the dilemma, I consider that that must be rejected. A conclusion that in every case a direction prohibiting or restricting publication of the evidence taken at the examination would be just as offensive and unlawful as a conclusion that in no such case should such a direction be given. The error in adopting any such general rule would lie in the fact that by doing so the examiner would not embark upon an actual objective determination of whether or not any such prejudice to a fair trial of the examinee may emerge from such a disclosure or, in other words, the examiner would thereby fail to perform the duty of assessing the existence or otherwise of such a risk cast upon the examiner by the legislation.
A second potential solution to the dilemma suggested by the submissions of the applicants might be to require that, whenever disclosure of the results of a compulsory examination of a witness before the ACC had been made to prosecuting authorities, then, in the event that the examinee is later charged with an offence or offences arising from facts which were the subject of the examination, no person, counsel or solicitor with knowledge of the disclosed evidence may in any way be involved with the conduct of the ensuing prosecution or trial. Apart from the practical problems of measuring the extent of the isolation and quarantine of personnel required by such an expedient, as already touched upon, this solution is subject to the same criticism as the first. Adopting it as a general rule would involve a failure to address or assess whether or not the knowledge by counsel or solicitors having the conduct of the prosecution may prejudice the fair trial of the accused examinee. Only if it might do so would that expedient be required because if there is no risk of such prejudice there would be no threat to the fair trial of the accused.
These conclusions, therefore, suggest that closer examination of the requirements of the statutory protection regime installed by s 25A(9), and endorsed in X7, and the identification of an actual or potential threat to the fairness of any ensuing trial must emerge from all the circumstances, if only by implication.
There may also be cases where there has been a compulsory examination of a witness before the ACC pursuant to s 30 of the ACC Act but no incriminating or potentially incriminating evidence from the witness has emerged or where answers have been given voluntarily without invocation of the compulsory powers to override the privilege against self-incrimination, or without the witness invoking the procedure prescribed by s 30(4)(c) of the Act. If that procedure is not invoked, entailing as it does a claim that the answer or production of the document might tend to incriminate the examinee or render him liable to a penalty, then the ensuing answer will not be protected from admissibility in subsequent criminal proceedings (s 30(5)(a)) or, in other words, will not have the benefit of the direct use immunity that s 30 confers. It follows that the inadmissibility in subsequent criminal proceedings of answers given by a witness at an examination who invokes the s 30(4)(c) procedure, and the need for an examiner to give an appropriate direction in relation to the disclosure of the contents of the examination under s 25A(9) are protections designed to prevent the use or disclosure, in appropriate cases, of answers given by an examinee which may or may tend to incriminate the examinee and in respect of which an express invocation of the diminished privilege has been asserted.
In a situation where the results of the examination of a witness conducted by the ACC under s 30 do not involve the disclosure of any evidence which may tend to incriminate the examinee, or where the limited privilege available to the witness under s 30(4)(d) has not been invoked, there would not seem to be any risk of actual or potential prejudice of a fair trial of the person examined if he were to be charged with an offence. It must be accepted that such an examinee has been required to attend for examination under statutory powers, and has been examined in circumstances where a failure to answer could lead to a direction requiring him to answer notwithstanding the privilege against self-incrimination, but if that is done without objection and no claim for limited privilege is invoked, then the results of the examination would be admissible at any ensuing trial of the examinee for an offence, even if related to the subject matter of the examination.
Accordingly, the possession of or knowledge of contents of such examination product by prosecuting counsel or solicitors would not seem to involve or imply any prejudice to the fair trial of the person charged, nor constitute a departure, in a fundamental respect, from the principle that the prosecution should be conducted by prosecuting counsel and solicitors who do not have access to the products of compulsory examinations which were, or should have been, protected by an appropriate direction under s 25A(9) of the ACC Act.
For these reasons, it seems to be apparent that the position in Lee v The Queen proceeds on the assumption that possession or access to such examination product by a prosecution team self‑evidently implies actual or potential prejudice to the accused and, for that reason, of itself, constitutes an alteration in a fundamental respect of the system of criminal trial underlying the accusatorial principle - as explained in X7.
In Lee v The Queen there are many examples of how that prejudice could, or potentially could, have been caused to the accused. There was the express acknowledgement by prosecution counsel at the directions hearing, already noted, that access to the examination transcripts could be of assistance to the prosecution in identifying and perhaps refuting explanations or defences which might be advanced by the accused at their trial. The means by which such prejudice might emerge are identified in Lee v The Queen at [41]. They included evidence from one of the Lees' solicitors that the possession of the examination transcripts by the prosecution foreclosed the possibility that that accused might give evidence at his trial. Other potential advantages to the prosecution, or disadvantages to the accused, arising from the prosecution's possession of the transcripts of the examination were also identified. It was, therefore, in that context that in the High Court their Honours decided that the disposition of the appeals did not fall to be decided by reference to whether or not there could be assumed to be some practical unfairness because, so I consider it to be implied, the very nature of what occurred demonstrated or implied unfairness or prejudice to the fair trial of the examinee.
What, then, is the effect of the observations of Keane and Gageler JJ in Lee v NSWCC, already cited, that the notion of any subtraction, however anodyne it might be in its practical effect from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused, is unsound in principle and is not consistent with Hamilton v Oades? It would appear that they must mean that some actual or potential prejudice or some interference with the administration of justice must appear from or be implied by the disclosure of the examination product which is the subject of complaint. When speaking of the obligation resting upon the NSW Crime Commission conducting a compulsory examination under that Act, the High Court gave specific attention to the role of s 13(9) of the NSW Crime Commission Act. Their Honours said at [28]:
Section 13(9) obliged the Commission to make a direction prohibiting publication of evidence before it, if not to do so might prejudice the person's fair trial. If there was a risk of prejudice, s 13(9) required a direction to be made. Whether such a risk existed was a question to be assessed objectively. In considering that question, the Commission would be expected to adopt a careful approach reflecting the protective purpose for which the duty to make such a direction was imposed on it.
This passage would appear to confirm that the existence of a risk of prejudice to the examinee's fair trial is a condition of, or essential to, the making of a direction under s 13(9) and that, in the absence of such a risk, no such direction would be required. This seems to reflect the assumption upon which the appeal in the High Court was conducted and determined that disclosure of the transcripts of the examination of the Lees necessarily involved a risk of prejudice to their fair trial, a conclusion in respect of which there had been supporting evidence before the NSW Court of Criminal Appeal which has already been noted. If there were only to be disclosure of anodyne material, there would be no occasion for a direction under s 13(9) of the New South Wales Act or s 25A(9) of the ACC Act.
It is time to return to the circumstances of the present case. Neither in the course of the application for the current temporary stay of the prosecution, nor at any other stage of the earlier application for a permanent stay of the prosecution before the first trial, was any actual or potential prejudice to either Mr Bartlett or to Mr Sayers emerging from the prosecution's possession of their compulsory examinations before the ACC identified.
The transcripts of those examinations, although subject to privilege and a suppression order, were put before the court during the earlier stay applications but there was no reference to particular passages in them or to the statements as a whole, which suggested that, either in isolation or combination, those transcripts were or might be incriminating, or may be prejudicial to the fair trial of the accused. No submission was made that, in any identifiable way, the conduct or procedure of the defences of the charges by either accused would be compromised, limited or prejudiced. No error was identified or suggested as having been made by the examiners when giving directions under s 25A(9) of the ACC Act authorising the distribution of those transcripts to, among others, prosecuting authorities. It has not been suggested that any knowledge of the contents of the transcripts of the compulsory examinations of the accused Bartlett or Sayers was utilised to the prejudice of either of the accused at their first trial, or that the manner or conduct of their defences at that first trial was circumscribed by the knowledge by the accused and their counsel that the prosecution possessed that material.
In short, there are significant and, in my view, material differences between the present case and that examined in the recent decision of Lee v The Queen [2014] HCA 20. In the latter case, the disclosure of the examination transcripts to the prosecuting counsel had not been authorised by the NSWCC and was acknowledged to have been unlawful. Furthermore, in the Lees' case, there were several tangible prejudicial results identified in the NSW Court of Criminal Appeal and accepted on the appeal to the High Court as demonstrating an advantage to the prosecution or disadvantage to the accused from the unauthorised disclosure of the examination transcripts. Nothing of that kind has been demonstrated in the present case and, consequently, I do not consider that I can or should infer that the authorised disclosures which have occurred were such as might prejudice the fair trial of either accused or that they constituted a departure in a fundamental respect from the type of criminal trial which the system of criminal justice requires and which arises from the fundamental accusatorial system of criminal justice. Unlike in the Lees' case, the present application has not been shown to involve the wrongful release to and possession by the prosecution of evidence which would otherwise have been withheld from them in furtherance of the protective purposes embodied in s 25A(9) of the ACC Act. That being the case, I consider that this joint application for a temporary or conditional stay of the pending retrial should be refused.