Bartlett v The Queen [No 6] [ - [2013] WASC 304

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: BARTLETT -v- THE QUEEN [No 6] [2013] WASC 304

CORAM: EM HEENAN J

HEARD: 24, 27 & 28 JUNE 2013

DELIVERED : 15 AUGUST 2013

FILE NO/S: INS 107 of 2012

BETWEEN: PETER MERVYN BARTLETT
First Applicant
RONALD GEORGE SAYERS
Second Applicant
DEBORAH JEANNE GRACE
Third Applicant
GREGORY JOHN DUNN
First Accused
AND
THE QUEEN
Respondent
AUSTRALIAN CRIME COMMISSION
Intervener By Leave

Catchwords:

Criminal law - Procedure - Application for permanent stay - Prosecution by CDPP of four persons on joint charge of conspiring with the intention of dishonestly causing loss to a Commonwealth entity - Alleged fraud in relation to company minutes and documents - Compulsory examination of three accused in course of investigation by ACC - No privilege against self incrimination in the course of ACC compulsory examinations - Direct use immunity for examinees - 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 ACC examiner should have given a direction under s 25A(9) of the ACC Act that no transcripts or details of the compulsory examinations should be disclosed to the CDPP or to any persons associated with any investigation or prosecution of the applicants - Whether the fair trial of the applicants may be prejudiced - Whether disclosure of the results of the examinations to the CDPP resulted in irremediable prejudice to the applicants such that only a permanent stay of the prosecution against them is sufficient to avoid prejudice to the fairness of the proposed trial

Legislation:

Australian Crime Commission Act 2002 (Cth)
Commonwealth Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Result:

Applications for permanent stay of prosecution dismissed

Category: B

Representation:

Counsel:

First Applicant              :     Mr M C Boyce
Second Applicant          :     Mr M C Boyce
Third Applicant            :     Mr I D Hill QC & Ms M K Kaddeche
First Accused                :     No appearance
Respondent:     Mr P Roberts SC & Mr A L Troy
Intervener By Leave      :     Mr M T Ritter SC

Solicitors:

First Applicant              :     Clifford Chance
Second Applicant          :     Clifford Chance
Third Applicant            :     Jackson McDonald
First Accused                :     In person
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
Australian Crime Commission v Bartlett [2013] WASC 108
Bartlett v The Queen [2012] WASC 503
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188
Jago v District Court of New South Wales (1989) HCA 46; (1989) 168 CLR 23
Lee, Do Young v R and Lee, Seong Won v R [2013] NSWCCA 68
Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456
R v Bartlett [No 4] [2013] WASC 107
R v Bartlett [No 5] [2013] WASC 132
R v Seller & McCarthy [2012] NSWSC 934
R v Seller; R v McCarthy [2013] NSWCCA 42
Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281
Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (BLF case) [1982] HCA 31; (1982) 152 CLR 25
Warren v Attorney‑General for Jersey [2011] UKPC 10; [2012] 1 AC 22
X7 v Australian Crime Commission [2013] HCA 29

EM HEENAN J: These reasons deal with the remaining parts of the applications by Peter Mervyn Bartlett, Ronald George Sayers and Deborah Jeanne Grace for a permanent stay of the prosecution brought against them jointly by the indictment dated 11 July 2012 as subsequently amended, by the Commonwealth Director of Public Prosecutions (CDPP). That indictment, amended on 22 March 2013 to include another accused, Gregory John Dunn (see R v Bartlett [No 4] [2013] WASC 107) has been listed for trial before me and a jury to be empanelled on 2 September 2013. The latest estimate of the likely duration of the trial made by the prosecution is about 11 weeks. Each of the four accused has pleaded not guilty and has been remanded on bail.
The three applications for a permanent stay of the prosecution made pursuant to the Criminal Procedure Act 2004 (WA) (CPA) have a long history and they, or applications associated with them, have been the subject of several previous decisions which I have given in the course of these proceedings. Although these are well known to the parties, it will be convenient here to provide a short summary of that background.
Before doing so, however, the joinder of Gregory John Dunn as a co‑accused in March 2013 rather than as an uncharged co‑conspirator, as was previously the position, follows upon extradition proceedings by the CDPP against Dunn resulting in his return to Australia from Thailand and his consequent arrest for this offence. Now as one of the four accused, Dunn is required to be present at his trial or at proceedings involving any application by a party under pt 4 of the CPA (which includes an application for a permanent stay of the prosecution) or the determination of other issues under s 98: see generally s 88 of the CPA. However, the court may order proceedings that relate to an accused to proceed in the accused's absence if it is satisfied that the accused's interests will not be prejudiced by his or her absence and that to do so will not be contrary to the interests of justice: s 88(4) of the CPA.
At the time of this hearing the accused Dunn had not applied for a permanent stay of the prosecution. He had not at any time been examined compulsorily by an examiner under the provisions of s 30 of the Australian Crime Commission Act 2002 (Cth) (ACC Act). He has not sought to join in, be associated with or in any way to support the applications by the three other accused for a permanent stay because of any use alleged to have been made by the prosecution of materials resulting from or derived from their compulsory examinations by the Australian Crime Commission (ACC). When appearing before the court in person on 24 June 2013 Mr Dunn specifically applied to be excused from any obligation to be present at the further hearing of these applications on 27 June 2013, explaining that he had no interests in those applications. His application to be excused from attending at this hearing was not opposed by the prosecution nor by counsel for any of the other three accused.
When the applications came on for further hearing on 27 June 2013, in Mr Dunn's absence, I specifically asked whether the prosecution or any of the other three accused had any objection to Mr Dunn being absent or required him to be present. None did. Accordingly, I was satisfied on 24 and 27 June 2013 that Mr Dunn's interests would not be prejudiced by his absence and that allowing him to be absent from the hearing of these applications by the other three co‑accused would not be contrary to the interests of justice. Accordingly I ordered that the applications could proceed in Mr Dunn's absence, and that procedure then followed.

Summary of background

In November 2012 these applications were argued at length but only insofar as certain issues of law were submitted to arise from them. In brief, the applications contended that, upon its proper interpretation, the ACC Act and common law combined to create not merely a direct use immunity 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 a compulsory examination by the CDPP or by any other prosecuting authority.
The second broad submission of law was that the examiners conducting the compulsory examinations of these three accused were positively obliged by s 25A(9) to direct that the results of the examinations should not be published either at all or, at least, not to any prosecution authority because doing so might prejudice the fair trial of the examinee who was a person who then might be charged with an offence.
The third broad submission was that, regardless of any direction made by an examiner under s 25A(9) of the ACC Act, if any publication of information derived from a compulsory examination was of a nature or effect which might prejudice the fair trial of the examinee, then a court could and should grant relief to prevent such potential prejudice to his or her fair trial by whatever means necessary including, in the present case, by directing a permanent stay.
At the time of those applications a decision of a single judge of the Supreme Court of New South Wales in R v Seller & McCarthy [2012] NSWSC 934, had ordered a permanent stay of a prosecution against two accused, essentially for those reasons and in comparable circumstances, but that order was under appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales. Consequently, for reasons which I gave on 20 December 2012 (Bartlett v The Queen [2012] WASC 503) I ordered that there should be a temporary and partial stay of the prosecution then pending against the three applicants in this court pending the decision of the New South Wales Court of Criminal Appeal in R v Seller & McCarthy. The stay ordered was partial only in that it did not prevent the hearing or determination of other applications in this prosecution but only the trial of the accused.
The decision of the New South Wales Court of Criminal Appeal in R v Seller; R v McCarthy [2013] NSWCCA 42 was given on 1 March 2013. This allowed the appeal from the decision at first instance in that case and set aside the stay of proceedings earlier ordered by the single Judge. The New South Wales Court of Criminal Appeal ordered that the matter be remitted to the trial Judge to proceed and to be determined according to law. Since then an application for special leave to appeal to the High Court of Australia has been made by the applicants in Seller & McCarthy but that has not yet been heard or determined. Consequently, for reasons which I published in R v Bartlett [No 5] [2013] WASC 132 I discharged the partial stay of this prosecution which had been granted on 20 December 2012 and directed that the case should proceed to trial in the normal way.
I have already noted that the hearing of the application for a permanent stay in November 2012 involved essentially contentions of law that no derivative use of evidence obtained by the ACC at a compulsory examination could be made by the prosecution in a subsequent trial of an examinee for an offence or offences associated with the topic of the examination in circumstances where the examinee had claimed privilege against self incrimination but had, nevertheless, been required to answer the questions to which that objection had been made under the provisions of s 30 of the ACC Act. The applicants had, in November 2012, with the assent of the prosecution, reserved arguments based on the particular allegations of fact which might, if accepted, support a claim for a permanent stay of the prosecution on the principles discussed in Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 and Jago v District Court of New South Wales (1989) HCA 46; (1989) 168 CLR 23.
Next, the three applicants issued a series of witness summonses to the CDPP and to the ACC seeking the production of a wide range of documents which, so they asserted, might provide evidence to support the applications for a permanent stay of the proceedings by providing details of whether, and if so to what extent and by whom, any information deriving from the compulsory examinations conducted by the ACC had been provided to the CDPP in this case. Several sets of these witness summonses were issued, the details of which have been described in earlier reasons for decision and which need not be repeated. Both the CDPP and the ACC then made applications to have those witness summonses set aside on various grounds, including the alleged absence of any legitimate forensic purpose and/or claims for public interest immunity and/or legal professional privilege. I determined those applications by a decision delivered on 16 April 2013, R v Bartlett [No 5], by which I set aside the witness summonses issued by each of the accused for the production of documents by the CDPP and by the ACC. The effect of that decision therefore meant that if the applications for a permanent stay of the prosecution were to proceed at all, they would need to do so without access to the documents sought from the ACC or the CDPP and upon evidence already adduced by the applicants in these proceedings or to be adduced before the final determination of the residue of those applications. I gave directions that any further submissions in relation to the applications for the permanent stay of the proceedings should be made on 24 June 2013 and I set time aside on that day and the following day for any necessary hearing.
The next development was that the applicants Bartlett, Sayers and Grace applied to the Court of Appeal for leave to appeal from my decision and orders of 16 April 2013 setting aside the witness summonses which they had issued. That application in turn attracted what the parties appear to have called a 'strike out application' which I am led to believe is, in substance, an objection to the competency of the proposed appeal. Those matters came before Murphy JA in the Court of Appeal on 7 June 2013 who, for reasons then given, referred the hearing of the application for leave to appeal and the appeal to a full hearing by the Court of Appeal on 23 July 2013, and also referred the strike out application (objection to competency) to the Court of Appeal on the same date. Obviously, with the trial in this prosecution listed to commence on 2 September 2013, the need for the disposition, if at all practicable, of these outstanding matters before then assumed prominence.
In advance of the hearing listed for 24 June 2013 to determine any remaining portions of the applications for a permanent stay of the prosecution, written submissions were filed by the applicants seeking an adjournment of that hearing until after the decision of the Court of Appeal on the pending applications for leave to appeal/appeal had been determined. This was opposed by the prosecution on the grounds that the matter was becoming urgent and that there was only a relatively short time remaining until the commencement of the trial, meaning that the final preparations for such a large trial could be severely disrupted if the determination of the stay application was unduly prolonged.
Those submissions were renewed when the matter came on for hearing on 24 June 2013 with the applicants contending that if the remaining stay applications were to be determined without access to the material sought on witness summons from the ACC and the CDPP there would be the potential for an incongruous situation to arise if the applicants' appeals were successful and orders were made for the production of the material sought from the CDPP and the ACC but which could not then be relied upon because the stay applications had finally been determined without the accused having the opportunity to consider or adduce in evidence any of the material being sought. There was at this stage no attempt or proposal by the applicants to adduce any further evidence in support of their applications for a permanent stay of the prosecution beyond evidence which had already been received in the course of earlier applications or which might be tendered if the appeals were successful and the accused had access to some or all of the material sought from the CDPP and the ACC.
In those circumstances, I ordered that the remaining parts of the applications for a permanent stay of the proceedings should be fully developed and argued by counsel for the applicants at the hearing on 27 and 28 June 2013 and that all material sought to be relied upon by the applicants or by the prosecution then be identified and produced (save for consequences of possible success by the applicants in the pending appeal to the Court of Appeal). I directed that I would reserve my decision on the stay applications until after the decision of the Court of Appeal on the pending applications listed for 23 July 2013 became known or until further order, reserving liberty to apply to the applicants to make further submissions or to tender further evidence in support of the applications in the event of success in those appeals. I also indicated that, pursuant to this liberty to apply, any party, including the prosecution, could apply for directions in relation to any matter possibly affecting the commencement of the trial on 2 September 2013 in the event that the decision or decisions of the Court of Appeal were not given until some time after 23 July 2013.
One further development of significance is that on 26 June 2013, that is, before the further adjourned hearing of these applications on 28 and 29 June, the High Court delivered its decision in X7 v Australian Crime Commission [2013] HCA 29 which dealt extensively with the question of whether or not the ACC could exercise powers of compulsory examination under div 2 pt 2 of the ACC Act to conduct an examination of a person who had been charged with a Commonwealth indictable offence where the examination concerns the subject matter of the offence so charged. The court held (Hayne, Kiefel and Bell JJ; French CJ and Crennan J dissenting) that upon its proper interpretation the ACC Act does not authorise an examiner appointed under s 46B(1) of that Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence. The potential significance of the eventual decision in X7 v Australian Crime Commission had been referred to in my decisions in Bartlett v The Queen [2012] WASC 503 at [14], [97], [129] and [134].
In the course of their reasons for decision in X7 v The Commonwealth several of the justices in the High Court adverted to the role and function of s 29A(9) and (11) of the ACC Act in terms which have, so it was submitted, given fresh or renewed potential to arguments advanced by the applicants at the hearing in November 2012. As a result, the submissions advanced on behalf of the applicants at this most recent hearing have, to a limited extent, but no further than was legitimate, revisited a number of the propositions and approaches taken in Bartlett v The Queen [2012] WASC 503 ‑ the December 2012 decision granting a temporary and partial stay of these prosecutions. There was no objection to this course being taken by counsel for the prosecution.

Appeal dismissed, leave to appeal refused or appeal dismissed as incompetent

Since this hearing the applications by these three accused to the Court of Appeal for leave to appeal from the orders made on 16 April 2013 have been heard and determined. On 23 July 2013 the Court of Appeal refused leave and held that the applications for leave to appeal were incompetent. This means that the present applications are to be determined on the basis of the submissions received and evidence tendered at this hearing without any further hearing. I have accordingly proceeded and dealt with the matter on this basis.

Evidence in support of the stay applications

The applicants Bartlett and Sayers did not seek to adduce any further evidence on this part of the hearing of their stay applications. Counsel for these two applicants expressly submitted that their applications should be determined on the evidence already before the court.
Counsel for the third applicant, Ms Grace, however, also submitted that her application should be determined on all the evidence presently taken on these applications but in doing so made specific reference to affidavits of an officer of the ACC which had been tendered by counsel for the ACC in connection with the applications to set aside the witness summonses and in connection with an earlier application to determine the admissibility of certain other documents for which there were claims of legal professional privilege and/or public interest immunity. That had resulted in my decision in Australian Crime Commission v Bartlett [2013] WASC 108 of 28 March 2013. The affidavits in question were those of Mr G P Pritchard of 26 October 2012 and of 13 December 2012. In those affidavits Mr Pritchard had deposed that he had been informed by Mr Robert Philp of the Perth office of the ACC of frequent liaison and communication between the ACC investigators and officers of the CDPP regarding the progress and status of 'Operation Haycastle' and that there had been regular exchange of information, including provision of legal advice given by the CDPP to the ACC. The details are set out in [26] ‑ [36] of my reasons for decision in Australian Crime Commission v Bartlett [No 3].

Initially, counsel for the CDPP objected to the affidavits of Mr Pritchard being adduced on behalf of Ms Grace in support of her present application. The grounds for that submission were that those affidavits had only been tendered by the ACC to be read on the application concerning whether or not certain documents were privileged from production and had not been tendered by the CDPP. This proposition was coupled with the further submission that notice of the intended use of the affidavits had not been given by the solicitors for Ms Grace to the CDPP and following this course would deprive the Crown of the opportunity to cross‑examine the deponent, a procedure which the CDPP wished to employ because of the need it saw to clarify certain parts of the affidavits. I gave leave to counsel for Ms Grace to read the affidavits of Mr Pritchard on the present application on condition that he be made available for cross‑examination by counsel for the CDPP if so demanded after 12 hours' notice and if such demand were made and the witness were not available for cross‑examination, then the proposed use of the affidavits would be rejected. On that basis, the submissions continued provisionally. The following day counsel for the CDPP informed the court that he no longer sought to cross‑examine the deponent, Mr Pritchard, upon those affidavits or to adduce any other evidence in connection with that matter. Accordingly, the application proceeded on the basis that the affidavits of Mr Pritchard were evidence on the application.

Submissions for the accused Bartlett and Sayers

The approach taken on behalf of the accused, Bartlett and Sayers, was to renew the written submissions made in support of the original unsuccessful applications (Bartlett v The Queen [2012] WASC 503), but to amplify and amend these to take into account subsequent developments including R v Seller; R v McCarthy [2013] NSWCCA 42 and X7 v Australian Crime Commission [2013] HCA 29. These included a submission, which I accepted, that in the light of the decision in X7 v Australian Crime Commission earlier decisions which concluded that the ACC Act permits a person charged with an offence to be compulsorily examined at an ACC hearing on matters connected with the substance of an offence charged, so long as that person is protected against direct use of such evidence, must now not be followed. The submission advanced for these accused was that the effect of the decision in X7 v Australian Crime Commission also meant that a person may not be examined compulsorily at an ACC hearing on matters concerning the substance of an offence with which that person may later be charged.
As well as relying on the amended written submissions already mentioned counsel for Messrs Bartlett and Sayers also focused on three propositions which, he submitted, could be sustained in this case. These were:
(1)As a matter of law s 25A(9) of the ACC Act operates to protect an accused person's privilege against unfair derivative use by the CDPP of compelled testimony which concerns matters in respect of which that accused has or may be charged.
(2)That there was, in fact, in the present case a dissemination of compelled testimony by Messrs Bartlett and Sayers in breach of s 25A(9).
(3)Even if there may be cases in which examination of compelled testimony in breach of s 25A(9) would not warrant a permanent stay of a subsequent prosecution, in the present case a permanent stay ought to be granted because there is no other way of preventing the unfairness of what has occurred causing prejudice to the fair trial of these two accused.
Counsel for Messrs Sayers and Bartlett also included in their amended submissions (although I consider that in substance this proposition was put and considered before) that the examination product obtained from Messrs Bartlett and Sayers in their various ACC examinations was given by the ACC to the CDPP or 'was disseminated by the ACC to the CDPP just before and soon after the accused were charged'. Accordingly, it was contended that derivative use of these materials was thereby made by the CDPP. Again, so much had been apparent at the time of my earlier decision on 28 December 2012. This so‑called derivative use was consistent with, according to the submission, the CDPP having 'read', 'considered' and 'referred … to its counsel' the written statements of each of Messrs Bartlett and Sayers dated 24 October 2006 which had been made under compulsion to the ACC. Again, however, this disclosure had been known and accepted at the time of the hearing which led to my decision on 28 December 2012.
When making submissions concerning the legal principles applicable in the situation, counsel for Messrs Bartlett and Sayers referred to earlier authorities which held that, so long as a person is protected against direct use or the risk of such use, the disclosure of evidence taken at compulsory examinations from him or her at an ACC hearing was permissible so long as the results of that examination were not available to a prosecuting authority or body responsible for prosecuting the criminal offence in question. Counsel submitted that that principle had been accepted in Australian Crime Commission v OK [2010] 185 FCR 258; R v CB, MP v The Queen [2011] NSWCCA 264 and 'by minority of the High Court' in X7 v Australian Crime Commission. I accept that that was the view taken by the minority in the High Court in X7 v Australian Crime Commission and that it was also accepted by the Full Court of the Federal Court and the Full Court of the Court of Criminal Appeal in New South Wales in the two other cases cited, but it is contrary to the conclusion of the majority in X7 v Australian Crime Commission and can no longer be accepted nor can these earlier authorities, to that extent at least, be regarded as now being authoritative.
Counsel for the applicants then submitted that the decision of the NSWCCA in R v Seller and R v McCarthy (the Seller and McCarthy appeal) held that s 25A(9) of the ACC Act could operate to protect against pre‑charge dissemination to, and derivative use by, the CDPP of compelled evidence given by an accused person at an ACC hearing who was later charged with an offence which had been the topic of the examination. The submission proceeded that if dissemination and derivative use had occurred in breach of s 25A(9), that is to say, if dissemination occurred in circumstances that 'might prejudice' the trial of the person who has been or may be charged with a criminal offence, then such dissemination and use might justify the grant of a permanent stay.
With regard to that submission I should first observe that such dissemination would not occur in breach of s 29A of the ACC Act if, as in the present case, such disclosure was authorised by a direction given by the examiner under s 29A(9) or by any other direction or revised direction made by the CEO under s 29A(10). In any event, there is no occasion for this Court to conduct a review of whether or not the examiner who did conduct such an examination should have made any different direction under s 29A(9) or, for that matter, whether the CEO acted correctly in making or revising the direction under s 29A(10). I have already referred to this point and rejected that submission in observations made in R v Bartlett[No 5] [2013] WASC 132 [25].
The question for present consideration is whether, according to established principles, it has been shown that the continuation of the present prosecution against these two accused will involve such a risk that nothing which the trial Judge can do in the conduct of the trial could relieve against the unfair consequences faced by the accused as a result of those events. The so‑called unfair consequences are, so these submissions have continually maintained, that the disclosure of the product of compulsory examinations before the ACC to the CDPP, even though the subject of direct use of immunity, 'might prejudice the fair trial of [the person] who … may be charged with an offence' to paraphrase the language of subsection 25A(9).
As the argument progressed, it again emerged that the feature said to constitute the unfair consequences, or the basis for the prejudice to the fair trial of the person charged, is the fact that the person had been compulsorily examined without the benefit of privilege against self‑incrimination and that the result of that examination had come to the knowledge of the prosecutors notwithstanding that that evidence from the witness could not be adduced against him in the prosecution. This led again to a submission that s 30 of the ACC Act 'had not abolished the privilege against derivative use of compelled ACC evidence' – a proposition which I earlier rejected and again reject – see R v Bartlett [2012] WASC 503 [87] – [94]. In my view, the highest point at which the proposition advanced by these applicants can be accepted is that there is, and always has been, the power of the Judge presiding at a criminal trial to grant a stay of proceedings if, and only if, there has been some anterior breach of the law or procedure in relation to the obtaining of the evidence to be adduced or used by the prosecution so that no other means of dealing with the resulting prejudice could be regarded as satisfactorily effective. That there is such a residual power to protect against prejudice of this kind is a long way short of establishing that there is a derivative use immunity in respect of evidence obtained by the ACC from the person later charged with an offence when that evidence was obtained as a result of compulsory examinations under s 30 where the privilege of the witness against self‑incrimination had been overridden.
As for the submissions that observations by Bathurst CJ, made with the agreement of McClellan CJ at CL in the Seller & McCarthy appeal at [102] and [119] ‑ [120] supported that contention, I can only say that I dealt fully with them previously in R v Bartlett [No 5] [2013] WASC 132 at [77] – [86]. Although I acknowledge that in some circumstances it may be possible that disclosure of the kind here complained about could produce a situation resulting in prejudice to the fair trial of the person who may be charged with an offence, there is no explanation in the present case of how this might actually occur or how it had occurred beyond the constant tattoo that the mere fact of the examination product having come into the hands of the CDPP and being known by the prosecution is sufficient to demonstrate the asserted prejudice. I do not accept that submission.
Turning to the significance, for the present case, of the decision in X7 v Australian Crime Commission [2013] HCA 29, counsel for Messrs Bartlett and Sayers sought to derive assistance from the reasoning of French CJ and Crennan J in their joint judgment, in dissent. French CJ and Crennan J had concluded that, upon its proper interpretation, the ACC Act did authorise an ACC examiner to examine compulsorily a person who has already been charged with a criminal offence about the circumstances of that offence, but that, if the ACC did so, the consequent protection required under s 29A(9) included a requirement that that results or products of that examination should not, in any way, be disclosed to prosecutors who have the responsibility of investigating or prosecuting the examinee for that offence. However, the clear and unmistakeable decision of the Court, emerging from the reasons of Hayne and Bell JJ and Kiefel J is that, upon its proper interpretation, the ACC Act does not authorise the compulsory examination of a person already charged with an offence in respect of the matters constituting or associated with that offence. In reaching that conclusion, the majority followed and applied Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188; 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 the reasons of Gibbs CJ at [54] in the BLF case.
The point established by those authorities, including X7 v Australian Crime Commission [2013] HCA 29, is that it would be an impermissible exercise of executive power (unless unmistakeably made clear by the empowering legislation) to permit the compulsory examination without the benefit of a privilege against self‑incrimination of a person who has already been charged with an offence when the focus of the examination is in relation to the circumstances and the commission of that very offence.
None of the authorities goes so far as to hold that such executive examination of a person who has not been charged with any offence cannot be conducted and there are many examples of where that has occurred. In making that observation, I exclude from consideration a case where an executive inquiry has been set up or has been pursued or conducted expressly for the purpose of obtaining evidence for a prosecution which is then intended or imminent because that, too, would be an abuse of power.
Nevertheless, the submissions for the applicants seek to take that further step. Their counsel has submitted that because the High Court has found that the ACC Act does not empower, over objection, an ACC examiner compulsorily examining a person who has been charged with a criminal offence, about that offence, it would follow by parity of reason that the ACC Act does not empower such an examination of an examinee who 'may be charged' with a criminal offence. This submission did not, in express terms, go further but the inevitable implication is that, upon that contention, Messrs Bartlett and Sayers could never have been examined by the ACC and that there should, consequently, have been no examination product which could have been supplied to the CDPP or to any other person. Because that has occurred, the submission would seem to entail the proposition, that the consequent risk of prejudice to their fair trial is even greater than had previously been suggested.
These implications from the submissions made on behalf of Messrs Bartlett and Sayers themselves illustrate further reasons why the submissions should be rejected. The prospect that there could never be an examination of a person who may be charged with an offence in relation to matters touching an offence with which he is ultimately charged by a process of executive investigation such as under s 30 of the ACC Act would curtail drastically the utility and purpose of such examinations. The purpose of the ACC legislation, is to conduct investigations and to obtain intelligence in respect of serious crime. It must, therefore, often be the case that a particular examinee may ultimately, as the result of a decision by other prosecuting authorities, be charged with an offence or offences. How could the statutory purpose of the investigation of crime by the ACC be adequately undertaken if ACC examiners were prevented from examining any witness who himself or herself might be charged with an offence which is the focus, or even emerges from the course of, the examination?
In the examples being postulated, there are no criminal charges pending against the examinee at the time of the examination and, consequently, no possibility of there being an abuse of power involving a contempt of a court. The essence of the disadvantage asserted by the applicants lies in the compulsory form of the examination conducted without the benefit of privilege against self‑incrimination by the examinee. That seems to be the basic point implicit in the various forms in which the submissions had been advanced on behalf of the applicants. However, such a coercive examination without the benefit of that privilege is the very procedure which Parliament has permitted and is accompanied by the so‑called direct use immunity which prevents the evidence obtained from the witness being directly used against him or her in any subsequent proceedings.
The submission that because of the reasoning in X7 v Australian Crime Commission the ACC Act does not empower the compulsory examination of a person who may be charged with a criminal offence, and the propositions which I have pointed out follow from that, must be rejected because of the decision of Weinberg J in A v Boulton [2004] FCA 56; (2004) 204 ALR 598, affirmed on appeal by A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420. That decision was expressly accepted by Bathurst CJ in R v Seller; R v McCarthy [2013] NSWCCA 42 [81], as I pointed out in R v Bartlett [No 5] [2013] WASC 132 [85]. Neither the decision at first instance nor in the Full Court of the Federal Court in Boulton was cited or discussed in X7 v Australian Crime Commission and, therefore, there is no reason to conclude that these decisions are not authoritative.
It may well be the case that, to employ the language of Hayne and Bell JJ in X7 at [83], the words used in s 25A(9) and in s 29A(2) have ample work to do in respect of the examination of persons who may be suspected of wrong‑doing but who, before examination, have not been charged with any offence, but that observation does not deny the statutory power to conduct such examinations, rather it confirms it. Furthermore, the observations of Hayne and Bell JJ at [124] about the adverse impact upon the accusatorial process of a compulsory examination, without the benefit of privilege against self‑incrimination of a person, after being charged, are clearly confined to the situation which arises after a prosecution has commenced.
Even if one accepts that the observations of French CJ and Crennan J in X7 in dissent at [61] dealing with the use made of compulsory examination product of a person who had, before the examination, been charged with an offence are applicable in the case of such an examination of a person conducted before any charges are laid (a point which must be regarded as open and unresolved) that does not lead to a conclusion that any prejudice resulted in the present case. At that point their Honours said [61]:
Whether a direction under s 25A will be sufficient to preclude the prosecution from obtaining an unfair forensic advantage in a trial cannot be stated in any categorical of exhaustive fashion. In considering the sufficiency of any such direction, it would be necessary to consider the nature of the self‑incriminating evidence as well as the role of persons who have had access to it, together with the use which such persons might make of it.
In the present case, all the evidence given by these two examinees, and for that matter by the co‑accused Ms Grace, is known and has been in the possession of the accused from an early stage of this prosecution. The various stages of the hearing of this application for a permanent stay have been conducted on the basis that the content of the examination product is known to all officers materially involved in the prosecution and there has been no attempt to suggest otherwise. The evidence which is to be adduced by the prosecution in support of the charge against the accused (which of course does not include the statements compulsorily obtained from the accused) is also known and has been disclosed from an early stage in the prosecution. Yet there has been no submission on behalf of Messrs Sayers and Bartlett that any part of the evidence contained in the prosecution brief is 'derivative evidence' or evidence of such a kind that because of its association with the compulsory examinations of Messrs Bartlett and Sayers its use may prejudice the fair trial of either accused. It is the absence of any reference to any tangible evidence or any use of particular evidence as a form of potential prejudice which leaves these applicants' submissions without foundation.
The position of Ms Grace in this regard is different and will be separately examined later.

Still, despite the apparent inability of the applicants to point to any particular evidence obtained as a result of the compulsory examinations before the ACC or use of that evidence at the forthcoming trial in a way which might support a conclusion that the consequence may be to cause prejudice to the fair trial of the accused, further reasons are advanced in support of the stay claimed. Counsel for Messrs Bartlett and Sayers submits that the categories of case which might warrant a grant of a permanent stay are not closed and that such a stay should be granted where a trial will be so unfair that it will not (no matter what procedures might be adopted to ameliorate that unfairness) constitute a trial according to law. Although it is put as an alternative, it seems that included under that rubric is the submission that a permanent stay will be warranted where it cannot be established that the trial process itself will be unfair (for whatever reason) but that it will be 'unfair to try' the accused in all the circumstances. Instances of this form of prejudice warranting a stay are said to be exemplified in Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 and Warren v Attorney‑General for Jersey [2011] UKPC 10; [2012] 1 AC 22.
Moti v The Queen was a case where a permanent stay of the prosecution of an accused before the Supreme Court of Queensland was granted in the High Court arising from an abuse of process because Australian officials had facilitated the deportation of the accused from the Solomon Islands to Australia knowing that it was at the time unlawful under the law of the Solomon Islands. The charges related to alleged sexual offences by the applicant, as an Australian citizen, who whilst outside Australia engaged in certain forms of sexual conduct contrary to s 50BA read with s 50AD of the Crimes Act 1914 (Cth). There was no doubt that the deportation of the accused from the Solomon Islands was illegal under the law of that jurisdiction and that Australian authorities were aware of this and had acted in connection with his deportation in order to facilitate this. Consequently, upon balancing the respective public interests, the court decided that a stay of the proceedings was necessary.
A similar ingredient of illegality in the course of preparing for a criminal prosecution was alleged in the case before the Privy Council in Warren v Attorney‑General for Jersey. That case concerned an alleged conspiracy to import a large quantity of cannabis in to Jersey through several nearby European countries. Various interception devices were utilised by the Jersey investigating officers in Holland and France but without the authority of the governments or courts of those countries. It was held that the conduct of the police had been unlawful and reprehensible, that they had acted unlawfully in foreign jurisdictions, engaged in the deliberate deceit of their French counterparts and that they had deceived the Attorney‑General of Jersey and the chief officer of police, but their conduct had been approved by certain senior officers. However, the presiding Judge in Jersey held that there had been no deceit in a foreign court and no suggestion of prejudice or unfairness to the accused such that a fair trial could not take place. In view of the seriousness of the charges and the organised nature of the international drug trafficking conspiracy, his Honour held that the balance fell in favour of refusing a stay. That decision was upheld by the Privy Council, which decided that although there had been grave prosecutorial misconduct without which there would have been no trial and as a result that the case for a stay was of considerable weight, it had not been perverse or irrational for the Commissioner to conclude that the case was outweighed by the cumulative effect of the facts involving a serious offence and a professional drug dealer.
Unlike in the cases of Moti and Warren, there can be no suggestion of illegal conduct by the prosecution or by the ACC in the present case, let alone serious misconduct or illegality which would necessitate a balancing exercise between the interests of pursuing alleged crime to the point of a trial of the alleged offender on the one hand and the public interest of ensuring that the laws of procedure and other laws are obeyed by prosecuting and other authorities. Accordingly, while I accept the existence of a category of case which may warrant a stay of proceedings because it would be unfair to try the accused because of circumstances such as outlined in Moti, there is no basis whatever for concluding that this present prosecution is within that category.

Submissions on behalf of Ms Deborah Grace

Counsel for Ms Grace adopted the submissions which had been put on behalf of the accused Bartlett and Sayers and it is, therefore, unnecessary to repeat those or restate the conclusions which I have reached set out in the passages above.
In addition to her written submissions and the adoption of the submissions made by counsel on behalf of Messrs Bartlett and Sayers, counsel for Ms Grace submitted that the following features of the present prosecution, so far as it concerns her, mean that irreparable prejudice to a fair trial would result if a permanent stay of the prosecution is not granted. These submissions were essentially to the effect that the nature of the compulsory examinations of Ms Grace conducted under s 30 of the ACC Act was so extensive and intrusive and resulted in so much potentially incriminating material being obtained in the absence of her privilege against self‑incrimination that the result was that the distribution of that material by the prosecution meant that it had so much knowledge of her actions, the explanations which she had given and the limitations upon her potential defences that proceeding to trial against her would be unfair. In developing these submissions, counsel for Ms Grace submitted that she had been given the impression from the ACC officers that she was not a target or a suspect but a witness only giving evidence in relation to the conduct of others who may be suspect.
In support of these submissions counsel referred to the transcripts of her interview by ACC staff (exhibit 4 at the November 2012 hearing of this application) to the non‑publication order made by the examiner on 24 May 2007 later disregarded; to the content of her examination on 27 September 2007; and to the two written statements which she provided dated respectively 25 October 2006 and 27 September 2007. He also referred to the subject matter of her examinations after October 2006, namely on 24 May 2007 and 27 September 2007.
By reference to a table annexed to his written submissions, counsel for Ms Grace submitted that the nature and content of her examinations were designed to and did reveal knowledge and understanding on her part of the alleged 'False Interest' scheme and the extent of knowledge on her part of dishonesty of others in the implementation of that scheme and her personal misgivings and apprehensions about that. Passages in the transcript revealed by this table also tended to reveal her understanding of the False Interest scheme and the detail of its implementation so demonstrating that the examination did delve into her personal knowledge and understanding of matters which the prosecution may need to prove in the conspiracy charge. The submissions by counsel for Ms Grace then contended that this particular type of knowledge, personal understanding and intention could not have been discovered by the prosecution in any way but by the questioning of Ms Grace and that the information from the compulsory examination involved detailed answers given by her at length on these subjects which were clearly potentially incriminating and which could not have been obtained from her except in circumstances where her privilege against self‑incrimination had been abrogated. Counsel's submission was that the prosecution had been directly furnished with all that material and that it must be presumed to have made use of it in deciding whether or not to charge Ms Grace and in preparing for the trial, by making it available to the witness, Thomson, one of the alleged co‑conspirators.
So far as these submissions involve propositions of fact about the nature of the topics upon which Ms Grace was compulsorily examined, and how, at least in the initial stages, she believed from the conduct of the ACC officers that she was not a suspect and would not be charged; and that much of the evidence obtained from her in the compulsory examinations did involve details of personal knowledge, understanding and intention which could not have been obtained by other means, I accept that as being established by the evidence at this hearing and at the earlier hearing of the application in November 2012.
A special feature of Ms Grace's submissions is that it is asserted that an alleged co‑conspirator who earlier pleaded guilty and was sentenced, Mr Trevor Thomson, will be a central prosecution witness at this forthcoming trial. This is clearly so. The submission is that he was provided with Ms Grace's examination transcripts to refresh his memory when he was himself preparing statements for use in evidence for the prosecution. The CDPP submits that the disclosure of Ms Grace's statement to Thomson was made in the course of compulsory disclosure of the brief material to Mr Thomson upon his own charge and at a time when he and his advisers were arranging to enter a plea of guilty – see the affidavit of Mr Suiter sworn 1 November 2012.
It is accordingly submitted that the extent and strength of the testimony of the prosecution witness, Mr Thomson, has been expanded and increased by access which he has had to Ms Grace's examination transcripts. Whether that proposition can be made out or not may yet have to depend on the progress of the trial where there is likely to be examination and cross‑examination which will reveal matters relevant to the credibility of Mr Thomson. However, even if it were to emerge that Mr Thomson's recollections had been enhanced because of his access to the Grace examination transcripts, or to other transcripts for that matter, that would not, in my view, establish any fact or circumstance which would support the exclusion of that evidence or the grant of a permanent stay.
There has not, so far, been any objection to the admissibility of Mr Thomson's evidence in support of a case against Ms Grace, nor any attempt to identify those passages of his evidence which may have been influenced by or 'enhanced' by his access to the Grace transcripts. It is, nevertheless, germane to mention this because it identifies one possibility of dealing with this material, should a ground for doing so be established, by excluding that evidence. That shows that any necessary curial intervention would fall a long way short of requiring a permanent stay of the entire prosecution against this accused.
Returning to consider the effect of this submission upon the application for a complete stay of the proceedings, it is again necessary to observe that there is nothing illegal or unlawful about a witness for the prosecution having access to other contemporary accounts of the events in question either because he is a co‑accused entitled to disclosure of that information in his own right or because it may be useful to him in refreshing memory when preparing a statement of the relevant events. This may well constitute some form of derivative use of the evidence obtained from Ms Grace under the compulsory examination by the ACC but I do not see how derivative use of this kind in any way transgresses the limited privilege conferred by s 30 of the ACC Act upon an examinee or how it may cause or contribute to prejudice in the fair trial of Ms Grace upon this indictment.
However, I must again observe that I do not consider that any of the examinations of Ms Grace or the disclosure of the products of those examinations (with one possible exception) to the CDPP involved or constituted any illegal act or, as was put, a contravention of s 25A(9) of the ACC Act. Again, the explanation of this is a matter of record. The examiner (or the CEO by a direction under s 25A(11)) authorised the delivery of the transcripts of the examination to the CDPP. I appreciate that all counsel for the applicants have adopted the position that directions in those terms should not have been given and that directions which should have been given ought to have been in terms which prohibited disclosure of any of the examination materials to the CDPP or to any other prosecuting authority which might contemplate or initiate charges against any of those three examinees. However, the authority for the release of the information to the CDPP was given by the examiner and/or by the CEO and those authorisations stand. As I have said it is an entirely separate question, and the only question of relevance for present purposes, to determine whether and having regard to all the circumstances, the delivery of that examination product by the ACC to the CDPP has produced a situation where irremediable prejudice will be likely to be caused to the fair trial of the accused unless a permanent stay of the prosecution is granted.
The exception referred to in the preceding paragraph relates to the distribution of the results of certain examinations of Ms Grace by the ACC to the CDPP contrary to directions given by the examiner at the time. The details of these distributions is set out in my earlier reasons in Bartlett v The Queen [2012] WASC 503 [26] ‑ [29].
The history is that there were compulsory examinations of Ms Grace by the ACC on six separate occasions between 1 July 2005 and 9 December 2009. At the first four of these examinations, namely 1 July 2005; 29 November 2005; 25 October 2006 and 24 May 2007 the examiner made directions pursuant to s 25A(9) which authorised the publication of the information obtained to 'any prosecution authority'. The examiner also gave directions at the end of the fifth and sixth examinations on 27 September 2007 and 9 December 2009 pursuant to s 25A(9) but these directions omitted any reference authorising publication of the information so obtained to 'any prosecution authority'. As set out in my earlier reasons, the CEO of the ACC subsequently varied the examiner's directions on 17 July 2009 pursuant to s 25A(10). The CEO's directions varied the directions given by the examiner at the first five examinations and authorised publication of any information so obtained to 'any prosecution authority'. The CDPP has submitted that this has rectified the apparent oversight of the examiner in not authorising publication to 'any prosecution authority' of the information obtained from the fifth examination of Ms Grace on 27 September 2007. The CDPP submitted that information obtained from Ms Grace at the final examination on 9 December 2009 is irrelevant to the present charges against herself and her co‑accused and I do not understand that there is any controversy about that.
The evidence establishes that Ms Grace's statements dated 25 October 2006 and 27 September 2007 were provided to the CDPP by the ACC on 18 March 2008. This appears from:
•correspondence from the CDPP to Jackson McDonald dated 5 October 2011, attachment 5, materials in support of application for stay dated 15 October 2012
•affidavit of Mr C P Pritchard sworn 13 December 2012 for stay dated 15 October 2012
•Exhibit 5A to the application to set aside summonses – Table A: recorded correspondence between the CDPP and the ACC
It is common ground that Ms Grace's statement dated 27 September 2007 was disclosed to the CDPP without authorisation by the ACC examiner as evidenced by the transcript of hearing on 14 November 2012, pages 182 – 192, 221 and the affidavit of Mr L E Sage tendered on 15 November 2012
It was the usual practice of the examiner to make a non‑publication direction after these kinds of examinations, but to allow publication of the evidence to prosecuting authorities. In Ms Grace's case, this had been done on four previous occasions. On 27 September 2007 the failure to do so was described as an 'oversight': see the affidavit of Mr L E Sage tendered on 15 November 2012.
Subsequent copies of Ms Grace's statements were included in a brief of evidence delivered in to the CDPP in February 2010. The state of the evidence does not permit any finding to be made whether or not additional material derived from the September 2007 examination was supplied by the ACC to the CDPP before July 2009. There was no restriction on the delivery to the CDPP of Ms Grace's statement of 25 October 2006. But clearly, the direction made after the 27 September 2007 hearing did not permit the delivery to the CDPP of her statement of 27 September 2007. The variation of the non‑publication direction made by the examiner in 2007 was not made until July 2009 and a question therefore arises as to the effect of that variation.
Apart from the general submissions advanced, there has been no suggestion that the statements made by Ms Grace on the 2007 examination were materially more sensitive or required any different treatment than the other evidence obtained from her at earlier examinations. However, that is not to overlook that by her counsel Ms Grace has always maintained that none of the statements made at any of the examinations should have been disclosed to the CDPP.
In this regard, the first point of relevance is that the examiner's direction after the hearing on 27 September 2007 was later varied by the CEO by a direction under s 25A(10) made on 17 July 2007 so as to authorise the disclosure of the evidence obtained from Ms Grace at that examination to the CDPP. There is no allegation or suggestion that that was done by the CEO in bad faith or for a collateral purpose. Accordingly, that there was lawful authority for the ACC to deliver those transcripts and statement to the CDPP from then on. Furthermore, in all the circumstances, I consider that for any evidence provided by the ACC to the CDPP before that variation (and specifically the statement of Ms Grace of 27 September 2007) the later issue of the variation by the CEO under s 25A(10) constituted a ratification of what had earlier been done, it being at all times within the power of the CEO to make such a direction.
Consequently, I conclude, that the delivery by officers of the ACC to the CDPP of the transcripts of evidence emerging from the examinations of Ms Grace, and for that matter of Messrs Bartlett and Sayers, has not involved any illegality or unlawful conduct nor any breach of the requirements of s 29A(9). I again realise that counsel for these three accused have used the term 'breach of s 29A(9)' in a special sense which I have examined and dissected earlier. This usage amounts to a contention that the section required the examiner to have made a different direction and one which would have prohibited the materials ever being provided to the prosecuting authority which might have investigated and charged any of the accused.
Perhaps the high point of the submissions for Ms Grace is the contention at par 10 and par 11 (of the written submissions) that the prosecution in her case was directly furnished with all the evidence which in turn interfered with the course of justice. The submission is the Ms Grace was subsequently charged based on evidence provided by her in intervals at her examinations. There is some evidence to support that contention in the case notes of Mr Suiter of 30 March 2009. Her submissions proceed to assert that her examinations and statements compelled her to disclose a defence and attempted to establish her guilt. It is submitted that specific prejudice is shown in the use of those statements in building the count on the indictment, a proposition which is said to infringe the principle established in Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281. It is further submitted that her two written statements together with other compulsorily obtained information (examinations) were used as building blocks in the preparation of the case against her.

Even accepting that all this may be so and that knowledge of the material obtained from Ms Grace by the ACC at these compulsory examinations led the CDPP to lay the charge against her in the form which it did, and also to assemble evidence from Mr Thomson and perhaps others, I still do not see that this infringes any express or implicit protection contained in s 29A or s 30 of the ACC Act.
Furthermore, the submissions made by the several counsel for each of the three applicants do not, in my view, withstand the effect of the recent decision of the New South Wales Court of Criminal Appeal in Lee, Do Young v R and Lee, Seong Won v R [2013] NSWCCA 68 which was delivered on 3 April 2013; that is, after my decision in Bartlett v The Queen [2012] WASC 503 and after evidence and submissions had been concluded in R v Bartlett [No 5] [2013] WASC 132.
The decision in Lee v R was by a court comprised of Basten JA, Hall and Beech‑Jones JJ. It was given a little over a month after the decision of the NSWCCA in R v Seller; R v McCarthy and referred to and considered that decision. It was, however, given shortly before the decision of the High Court in X7 v Australian Crime Commission. Both of the Lees had been convicted of several charges involving illegal possession of prohibited firearms or ancillary equipment and supply of a prohibited drug, namely pseudoephedrine. One of the Lees was convicted of some charges but not others and the other Lee was convicted of different charges and acquitted of others. Both applied for leave to appeal against their convictions on various grounds.
Each of the Lees had been questioned at a hearing before the NSW Crime Commission pursuant to s 16 of the Crime Commission Act 1985 (NSW) and were required to answer, without the benefit of privilege against self‑incrimination, a series of questions and to produce documents. One of the Lees was examined before he was charged with any of the offences subsequently laid. The other Lee appeared after he was charged with the firearms offences but before he was charged with the possession or supply of drug offences. His questioning did not relate to the firearms charges. The Commissioner conducting the examination gave a non‑publication direction in respect of the evidence of one of the Lees pursuant to s 13(9) of the Crime Commission Act (NSW) but no similar order was made in respect of the other appellant. Before the trial the Commissioner, it is acknowledged wrongly, released transcripts of the evidence of the examinations to the State DPP together with statements attaching documents which had been compulsorily produced by one of the Lees. The DPP conceded that he had been unlawfully supplied with the transcripts of these interviews.
The Lees' proposed grounds of appeal included a ground asserting that there had been a miscarriage of justice arising or that there had been the denial of the right to a fair trial because of the prosecutor's possession of the appellants' transcripts of interview before the NSW Crime Commission. All three Judges rejected this proposed ground of appeal. When dealing with this issue Basten JA at [57], with whom Hall and Beech‑Jones JJ agreed, said that it was accepted that neither s 18B nor any other provision of the NSW Crime Commission Act provided what is commonly described as 'derivative use immunity'. His Honour said that where answers had been given under compulsion and led to the issue of a search warrant, execution of which revealed evidence incriminating the person examined, although the examinee's answers could not be used in a criminal proceeding, the product of the search could be. Basten JA then went on to observe at [58]:
The object and purposes of the Act, understood in the light of the functions of the Crime Commission and the powers conferred on it, demonstrate an expectation that an investigation by the Commission may lead to the acquisition of evidence which can be used in criminal proceedings. That evidence may result from the adoption of procedures which would be unlawful under the general law. Accordingly, the mere fact that information has been obtained, which would not have been available under general police powers of investigation and that the information has been passed on to a prosecutor, does not mean that a subsequent trial would be unfair.
Their Honours also held that in circumstances where it was accepted that an obligation had arisen for an examiner to make a direction protective of a fair trial, it did not follow that all forms of publication or dissemination of the material obtained from the compulsory examination must be prohibited. An examination of the authorities which included Hammond v The Commonwealth, Sorby v The Commonwealth, and R v Seller; R v McCarthy (on appeal) among others revealed that the closest that they came to the case then under consideration was to express opinions as to the circumstances in which there might be prejudice to a fair trial, sufficient to require a commission, such as the NSW Crime Commission or the ACC, to make a non‑publication order and, for that reason, none of those cases governed these two appeals.
Basten JA dealt at length with this proposed ground of appeal and Hall and Beech‑Jones JJ, although delivering separate reasons for decision, on this aspect of the case said only that they agreed with the conclusions and reasons of Basten JA. His Honour's reasons on this aspect of the case are to be found at [167] – [164] and are relevant in this present case. His Honour said:
[157]The appellant's written submissions alleged that the 'prosecutor's possession of the appellant's compulsory interview was in breach of the protective prohibition contained in the New South Wales Crime Commission Act … and consequently denied the appellant's right to a fair trial': par 2. The dissemination of the transcript of the interview to the prosecution after a charge had been laid may reveal the nature of the defence which the accused is likely to pursue, but would not necessarily jeopardise a fair trial. The question is whether it has jeopardised a fair trial in the particular circumstances of the case. Thus to provide a prosecutor compulsorily obtained material which 'discloses defences or explanations of transactions by the accused which he or she may raise at trial … could compromise a fair trial': R v Seller; R v McCarthy [2013] NSWCCA 42 at [104] (Bathurst CJ) (emphasis added).
[158]As the appellant correctly submitted, a close analysis of the content of the interview and the conduct of the trial was inappropriate. Further, evidence as to the advice given to the appellants, or the circumstances which influenced strategic decisions taken by their counsel and solicitor, are arguably irrelevant: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [27] (Gaudron J) and [107] (Hayne J), (Gummow J agreeing with both). The possibility of unfairness should be determined objectively. It is appropriate for that purpose to refer to the content of the interview released to the prosecution in the conduct of the trial. If that inquiry reveals a risk of unfairness, that may constitute a miscarriage of justice.
[159]There are three ways in which the content of the interview could have assisted the prosecution. First, answers given could have resulted in further inquiries and investigations. Secondly, the evidence of conversations and activities involving Mr Pak could have been used to clarify aspects of Mr Pak's evidence and forewarn him of possible lines of cross‑examination. Thirdly, the answers could have been used, indirectly, to prepare for cross‑examination of Mr Seong Won Lee, in the event that he gave evidence.
[160]In relation to the first use, as discussed above, there is no prohibition on extra‑curial use of information or evidence derived from the compulsory process. It is undoubtedly an important purpose of the powers conferred on the Commission that their exercise will lead to evidence which may be adduced at trial by the prosecution. That answers given under compulsion trigger further investigations is to be expected. The first possible use of the transcripts of the interviews can therefore not have given rise to relevant unfairness: R v Seller at [102]. Further, principles of transparency favour the prosecutor having access to material available to investigating authorities.
[161]There remains the question whether the second and third uses gave rise to a miscarriage of justice. Unlike Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, this was not a case in which any issue arose as to the admissibility of evidence; unlike Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, it was not a case in which an issue as to unfairness arose prior to the trial, although if any conviction were to be set aside, there would be a question as to the appropriate consequential relief. Viewed in its own terms, there was no miscarriage of justice in the present case for three reasons.
[162]First, there is no authority for the proposition that merely because the prosecution has obtained inadmissible material potentially relevant to the defence of the accused, the trial will therefore be unfair. Were it otherwise, the rejection of a confession on a voir dire would stop the trial. There are good reasons which favour release to the prosecution of all potentially relevant material available to the police or other investigating authorities, so that the prosecutor can determine whether steps have been taken in the past which may affect the fairness of the trial.
…
[164]Thirdly, the appellants (and in particular Mr Seong Won Lee) did not seek to establish any practical unfairness in the conduct of the trial resulting from the dissemination of the interviews. Nor, objectively speaking, was unfairness discernible. The high point of the case on ground 1 was that the prosecution had obtained, at their own request, the transcripts of interviews which should not properly have been provided by the Commission. It cannot be said that either appellant (and in particular Mr Seong Won Lee) thus lost a possibility of acquittal. Nor can it be said that for the trial to proceed in those circumstances tended to bring the administration of justice into disrepute.
There are, of course, some differences between the situation considered by the NSW CCA in Lee and the matter presently before this court. Here objection to the trial of the accused on grounds of potential prejudice to the fairness of the trial have been raised long before any accused has been put in charge of a jury and before any evidence in the trial itself has been adduced. Secondly, as no trial has been conducted, it is not possible to review the passage or conduct of the trial in order to examine whether, in any discernible way, prejudice or unfairness has resulted to any of the accused because of the procedure followed. However, I do not consider that these differences detract from the materiality and application of the observations made in Lee. As already remarked, the delivery of the materials obtained by the ACC in the course of its compulsory examinations of these three accused to the CDPP was not in any way unlawful. Secondly, while derivative use of that information may have been made, or may yet still be made by the prosecution in the form of preparation for cross‑examination of the respective examinees, should they go into evidence, this is not forbidden or impliedly excluded by any of the provisions of the ACC Act and, for reasons given by Basten JA, is to be expected having regard to the nature, structure and powers of the ACC and the role it performs.
For the disclosure of the products of the compulsory examinations by the ACC to the CDPP to constitute any ground upon which to order a permanent stay of the prosecution there would need to be established such unfairness or prejudice as would render the fair trial of the accused, or the particular accused, impossible.
For the examiner to make a non‑disclosure order under s 29A(9) which would prohibit delivery of any of the examination product to the CDPP, or another prosecuting authority, there would need to be some aspect of the evidence to be disclosed or the circumstances of the disclosure which 'might prejudice … the fair trial of a person who has been or may be charged with an offence'. The transcripts of the evidence of the examinees, if they contain incriminating material, cannot themselves be tendered in evidence against the accused because of s 30(4) and (5) of the ACC Act – see X7 v Australian Crime Commission [10] (French CJ & Crennan J). Obviously, therefore, it would be appropriate to make non‑publication orders which would prevent the content of such examinations becoming known to actual or potential members of the jury at any trial or to the public at large, and that is a precaution which was observed by the directions given in the present cases.
However, if direct use immunity for such examination product is conferred by the ACC Act but derivative use immunity is not – A v Boulton [2004] FCAFC 101 ‑ then clearly at the very least some forms of derivative use of the evidence are permissible. In Lee Basten JA instanced the legitimacy of the information being used to procure a search warrant, which in turn revealed further evidence incriminating the examinee. In R v Seller; R v McCarthy Bathurst CJ instanced the possibility that the use of the evidence to reveal defences or explanation of transactions by the accused which might be raised at the trial as potentially capable of prejudicing a fair trial but there is no precedent of such an objection succeeding nor any persuasive hypothesis given of how that might occur.
In the present case, all the evidence obtained from the ACC by the CDPP is well known, the basis of the prosecution case as contained in the brief materials and other disclosures by the prosecution has been available to the applicants for many months and apart from the submissions put forward on behalf of Ms Grace, which have already been discussed and rejected, there is 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 possession of the results of the compulsory examinations of Messrs Bartlett and Sayers and Ms Grace but where, because of s 30 of the Act, none of that evidence may be adduced itself.
It may well be said that these are probable, if not inevitable, consequences of curtailing the examinee's privilege against self‑incrimination by confining privilege to direct use immunity, but that does nothing more than recognise the power given to the authority by the ACC Act by s 30 or take us past the point of its vindication in A v Boulton. Ms Grace was not a person who had been charged with any offence at the time her examinations were conducted and, consequently, the decision in X7 v The Australian Crime Commission does not apply to her case. Accordingly, I have reached the conclusion that Ms Grace's application for a permanent stay of this prosecution should be dismissed.

Conclusion

For the above reasons, I consider that the applications of each of the accused Bartlett, Sayers and Grace, for a permanent stay of this prosecution should be dismissed.