CB and Australian Crime Commission and Commonwealth of Australia

[2013] HCATrans 307

[2013] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S297 of 2012

B e t w e e n -

CB

Plaintiff

and

AUSTRALIAN CRIME COMMISSION

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Directions hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 12 DECEMBER 2013, AT 9.43 AM

Copyright in the High Court of Australia

CB appeared in person.

MR M.J. O’MEARA:   If it please the Court, I appear for the defendants.  (instructed by Australian Government Solicitor)

MR A.N. WILLIAMS:   If the Court pleases, your Honour, my name is Williams, I appear for the Commonwealth Director of Public Prosecutions who is named on the summons and it is sought to join.  (instructed by Commonwealth Director of Public Prosecutions)

HER HONOUR:   Yes, now, do I take it – I note that the proceedings have been commenced under the title “CB”.  Mr O’Meara, was an order made at some stage in relation to how the proceedings were styled?

MR O’MEARA:   Yes.  I believe an order was originally made by her Honour Judge Murrell in the District Court.

HER HONOUR:   So this is, as it were ‑ ‑ ‑

MR O’MEARA:   Yes, and it has been carried on into this Court in the proceedings further to manifestation.  I am not certain whether an order has ever been made in this Court.  In fact, my recollection rather suggests that it has not.  That style has just been adopted and ‑ ‑ ‑

HER HONOUR:   Well, yes.  Is there some continuing reason – I take it is to do with the pendency of the trial.  Is that right?

MR O’MEARA:   I believe so, yes. 

HER HONOUR:   Well, if no party is taking an issue about the matter I might leave it at that. 

MR O’MEARA:   If it please the Court.

CB:   Your Honour, if I could indicate, another one of the reasons that I think there is a pseudonym is that in compliance with a section 25A(9) order which requires that any information that would allow a person who has given evidence to be identified is not to be published. So that is why I have stayed with – I can indicate I am not personally troubled by it, your Honour, but it is just in compliance with that order I have kept it.

HER HONOUR:   Yes, all right.  Yes, very well.  Now, you seek today an order granting you leave to amend your statement of claim to effectively abandon the relief that is claimed in your writ of summons filed on 9 October 2012, in light of the decision in X7 v Australian Crime Commission, and you seek to now make claims for relief of a somewhat different character.

CB:   What I would say about that, your Honour, is that the court would not necessarily have to deal with these issues.  These issues were wrapped up in my previous claim for relief.  These are just the issues that remain ‑ ‑ ‑

HER HONOUR:   Well, you say they are the issues that remain.  On the face of things they are rather distinct.  At the time these proceedings were brought before this Court gave judgment in X7, you were seeking a declaration ‑ ‑ ‑

CB:   Of invalidity.

HER HONOUR:   ‑ ‑ ‑ of invalidity in relation to Division 2 of Part II of the Australian Crime Commission Act.  As I understand it, you were seeking to develop an argument that the – those provisions invalidly conferred the judicial power of the Commonwealth on the first defendant.

CB:   I did not argue a breach of allocation of judicial power but merely an unconstitutional inference with the judicial power.  What I ‑ ‑ ‑

HER HONOUR:   I understand.  In any event, that issue has been resolved by the holding in X7 that the particular provisions of the Australian Crime Commission Act do not authorise the compulsory examination of a person charged but not yet tried for an indictable Commonwealth offence about the subject matter of the pending charge.  Now, the other relief that you sought was in relation to restraining the first defendant from making use of the transcript of your examination.

CB:   Yes.

HER HONOUR:   Now, the first defendant is willing to make orders of the same character as the orders made in X7 which would secure to you the relief that in essence you were claiming in your writ of summons.

CB:   It does not go all the way though, your Honour, because – for reasons that I was hoping to develop. Section 25A(9) does not have the effect of preventing derivative use and there has been potentially or many years of use that has been made of the transcript and its contents. If I could just quickly go through, your Honour, with why it does not – why 25A(9) does not prevent derivative use of the evidence.

HER HONOUR:   Before you develop your submissions concerning the effect of section 25A(9), you might direct some attention to why it is that the claims, or at least some of the claims that you wish now to make in your amended pleading, if you get the leave, are not an abuse in light of the decision of the Court of Criminal Appeal in R v CB on 9 December 2011.

CB:   Well, establishing the – the 25A(9) point was the central point of the Court of Criminal Appeal.  I realise that that issue has been decided by the Court of Criminal Appeal but I am fairly confident I can persuade your Honour in a very succinct manner that that issue has not been decided correctly but the other reason ‑ ‑ ‑

HER HONOUR:   That is the difficulty, if I can just draw this to your attention.  The Court of Criminal Appeal in its judgment of 9 December 2011 upholding the appeal brought against the decision of her Honour Judge Murrell, dealt with the section ‑ ‑ ‑

CB: Section 25A(9).

HER HONOUR:   ‑ ‑ ‑ 25A(9) point.  You contend the court came to a legally incorrect decision in that respect.  Is that so?

CB:   That is so, but I would say ‑ ‑ ‑

HER HONOUR:   Well, now, can I just take you one step further?  You then sought special leave from this Court in order to challenge the correctness of that decision and that leave was refused on 22 June 2012.

CB:   Yes.

HER HONOUR:   Then following judgment in X7, you sought to reopen the question of special leave and that application was dismissed on 8 November 2013.

CB:   Yes.  I develop it slightly differently though.  Whereas those decisions dealt with whether the interference created was enough to justify – was sufficient to justify a permanent stay, I would say that the questions that I bring now are more in the vein of the orders necessary to ensure that a fair trial can be had and to ensure that there is no such interference.  The court did not purport to engage in an examination of whether any and all interference that could possibly affect the trial.  The court’s attention was only directed to whether it was interference of a nature that would justify a permanent stay of proceedings.  So I would say that these issues, whilst they might have to be touched on – some of these same issues might overlap, there are significantly different questions of law that are arising.

HER HONOUR:   Well, you have seen, I take it, the submissions prepared by the first defendant?

CB:   Yes.

HER HONOUR:   Would you just bear with me a moment.  A number of contentions that are developed in those submissions go to what is suggested to be the utility of the claims for relief that you make.

CB:   Yes.

HER HONOUR:   So amongst the points that are taken against you is that this Court is most reluctant to interfere with criminal proceedings that are pending.  You would be aware of that?

CB:   Absolutely, your Honour.

HER HONOUR:   In what you just put to me a few moments ago, as I understand it, you say, well, all that the Court of Criminal Appeal’s judgment disposed of was an argument concerning section 25A(9) and its support, as it were, for a permanent stay.

CB:   Yes.

HER HONOUR:   You now seek to have the High Court grant you declaratory relief in order to ensure a fair trial.  Is that right?

CB:   That is, your Honour, and if I can say ‑ ‑ ‑

HER HONOUR:   Ordinarily one would expect the trial judge to secure you a fair trial.

CB:   I understand, your Honour.  The problem in this case though is that the trial judge is bound by certain findings of the minority judgment in X7, which the majority judgment did not purport to deal with certain issues as to the handling of evidence and how it is dealt with.  So the trial judge does not have the ability to rule differently from the minority judgment in X7, which I say is incorrect.

HER HONOUR:   The trial judge, one would expect, will listen to any submissions you make concerning the admissibility of evidence, or other features of the conduct of the trial, and make rulings according to law which, if incorrect, can be ultimately addressed in the usual way.  It does seem to me at first blush that the suggestion that this Court might stay to hear proceedings with a view to making declarations to guide the trial judge is a novel submission.

CB:   Well, this is an issue that affects not only my own trial but potentially many, many trials, so not only people examined before the Australian Crime Commission but the relevant provisions mirrored in State Acts as well, so there is certainly, I guess, a public interest in having the matter dealt with in a way that will clear the matter up for all – across all jurisdictions.  But also I would argue whether the District Court actually properly has jurisdiction for the purpose of remittal under section 44 because they can only decide the matter one way, given that the minority judgment in X7 has fallen, they can only decide it one way.  So it is an inevitability that it is going to be appealed to the Court of Criminal Appeal and arrive back before this Court.

HER HONOUR:   Well, that is the way matters usually proceed, sir.  The trial judge makes rulings of law.  There are limited circumstances in which it is possible to test the correctness of those rulings before the conclusion of the trial, but those are very limited circumstances.  Ordinarily, criminal trials proceed to their natural conclusion.  In the event of a conviction, the accused has an avenue of appeal available and ultimately there is always the question of special leave being granted by this Court.  But it is not ‑ ‑ ‑

CB:   I know it is not the usual course.  The example, Sankey v Whitlam, to which the defendants have referred, the Court actually did proceed to make declarations in relation to the pending criminal proceedings in that case, in circumstances similar to this where there had been lengthy interlocutory proceedings where there was an interest in having the matter dealt with finally and I would say that these are similar circumstances to those.  Further, your Honour, I think that there is significant public interest in the matter being determined finally and quickly because so many of these trials that could be affected might have to be retried or aborted and ‑ ‑ ‑

HER HONOUR:   Well, now, sir, your trial is listed to commence on what date?

CB:   3 February.

HER HONOUR:   Yes, that is at the commencement of the new law term.

CB:   Yes.

HER HONOUR:   This Court has completed hearing appeals for the year, appeals and matters in the original jurisdiction.  So what you propose is that I give you leave to amend your writ of summons in order to make claims for declaratory relief concerning – with a view, so you say, to securing a fair trial according to law.  Inevitably that requires that the trial that is now listed be adjourned, does it not?

CB:   At least for a short time, your Honour, yes.  There is a three week Basha inquiry scheduled for the start of the trial, so I do not know if these proceedings could run concurrently alongside those proceedings but, yes, it is probably inevitable that it would be, yes.

HER HONOUR:   Just so I understand it, the claims for which you seek leave to amend and which you wish to propound are set out in paragraph 7 of your proposed amended pleading.  Do you have that with you?

CB:   Yes, I do, your Honour.

HER HONOUR:   The first defendant suggests that the declaratory relief claimed in subparagraphs 1 to 3 is being sought to establish a foundation for an application at your trial concerning the effect in law of your examination before the Commission in September 2009 and the possibility of derivative use being made of information obtained at that examination.  Is that right?

CB:   Yes.

HER HONOUR:   If we then turn to the further claims that you make, you seek a declaration that your examination was unlawful and there is a nullity in subparagraph 4.  In 5 you seek injunctive orders restraining the first defendant from retaining and making any further use of the transcript of the examination and then in the concluding subparagraph you seek “other relief” in relation to pending criminal proceedings.  Now, just turning to the orders that the first defendant is willing to consent to, they are orders conformable with those made disposing of the proceedings in X7.  Those would seem to address the claim that you make, at least, in subparagraph 5, would they not?

CB:   Not entirely, your Honour, because the defendants propose to retain a copy of the examination whilst sealed, how it differs from the quarantine that they have claimed exists is neither here nor there.  The problem is with that is that the majority judgment in X7 found that a person was prejudiced by the existence of a record of a – there are answers given regardless of whether use is made or not ‑ ‑ ‑

HER HONOUR:   Is there a paragraph in the judgment in X7 that you are referring to in that submission?

CB:   I do not have the judgment with me offhand.  The judgment, as I understood it - obviously you understand better than me - is that the person being forced on oath to give an account and the existence of that account on oath binds the person in their conduct of the trial.

HER HONOUR:   Indeed.  That event has occurred.  What is in issue or was in issue by the proceeding that you commenced in, I think it was October 2012, were claims for relief arising out of that compulsory examination.  One cannot take back the examination as a matter of history.  It has occurred.  What can be done is to ensure that no use be made pending the determination of the criminal charges against you of the material obtained at that examination and that there be no question of the first defendant exercising its statutory powers of compulsory examination to further question you on the subject matter of the pending charge until that matter has been completed. 

CB:   The destruction of the transcript as opposed to simply sealing of the transcript would have a different legal effect, I would submit, your Honour. 

HER HONOUR:   What different legal effect in terms of the prejudice to you in the conduct of your trial? 

CB:   The effect that I was just outlining then, your Honour, that there is no longer an existence or a record of answers given under compulsion on charge.  It seems that if the record was to be retained it seems unclear what utility that would serve to retain the record of the examination other than to create a risk that use could be wrongly made of it.

HER HONOUR:   The Court can hardly proceed on that assumption, sir.

CB:   No.  I note that the defendants have indicated to me that they have certain obligations under the – I forget which Act it was – Archives Act, thank you.  They have certain obligations to retain the record under the Archives Act.  I note that the Archives Act – I cannot remember the exact subsection, I think the defendants know that the – it does note that records can be destroyed according to any law of the Commonwealth and I would suggest that the law of contempt is such an exception that would allow the transcript to be destroyed and there is just no reason to retain it.

Further, your Honour, the other reason that the relief proposed by the defendants does not go towards the relief I seek in subsection 5 is that it does not address the containment of any information derived from the examination.  So the ambit of 25A(9) does not extend to the information that the Commission discovers as a consequence of the ‑ ‑ ‑

HER HONOUR:   The claim for relief in your amended pleading is:

Injunctive orders restraining the defendants from retaining and/or making any further use of the transcript of the examination or any documents relating to or evidencing the said examination or derived from its content.

CB:   Yes.  “Derived from the content” is where the work is being done, your Honour.

HER HONOUR:   Yes, all right. 

CB:   That, in itself, raises the issue again of the protection afforded by 25A(9), whether or not because ‑ ‑ ‑

HER HONOUR:   The first defendant is willing to consent to an order that it by its officers, examiners, servants, agents and employees retain and seal any recordings, transcripts, tapes, computer discs or computer records of the examination conducted by it of you on 15 September 2009 about the subject matter of the charged offences.

CB:   That does not catch, though, anything that they have – so, they have the examination, the transcript, it does not catch anything that they have located as a consequence by using the information given in the transcript.  Those orders that they proposed do not catch any of the information that they have located as a consequence.

HER HONOUR:   It might be hard to frame - I will hear from Mr O’Meara about that.  Is there ‑ ‑ ‑

CB:   Could I say one more thing just on that last subject?  Whilst I understand it might be hard to frame an order in the terms of catching anything that is being derived therefrom that is why the declaratory relief that I seek at least that it would alert the trial judge to the possibility of the arising of derivative evidence such that these orders can be made to exclude evidence.  At the moment, the findings of the minority in X7 would have the courts conclude that ‑ ‑ ‑

HER HONOUR:   What finding are you referring to?

CB:   The finding that section 25A(9) prevents any derivative use of evidence. That finding would cause any court ‑ ‑ ‑

HER HONOUR:   I will just ask you to pause for a moment.  Mr O’Meara, can you direct me to some paragraph to which the plaintiff is referring in this submission?

MR O’MEARA:   He may have in mind, your Honour, the observations of the Chief Justice and Justice Crennan at paragraphs 52 to 61.

HER HONOUR:   Paragraphs 52 to 61 and I wonder, do you have a copy that you can give to the plaintiff so we can just be clear about what it is that he is addressing at the moment?

CB:   Paragraph 59, I think, your Honour – 57, sorry, your Honour:

These safeguards are capable of preventing a compulsory examination ‑ ‑ ‑

HER HONOUR:   You are referring to the decision in X7 (2013) 87 ALJR 858 in the joint reasons of the Chief Justice and Justice Crennan at 875, paragraph 57, where their Honours speak, as I understand it, of the safeguards available by way of the powers of the trial judge to secure a fair trial. Is that ‑ ‑ ‑

CB:   Yes, your Honour, at the bottom of 55 as well there is ‑ ‑ ‑

HER HONOUR:   I am sorry, these are, in fact, if I go back, their Honours are considering here at 55 the – 25A(9) ‑ ‑ ‑

CB: Section 25A(9) “can protect a person compulsory examined against both ‑ ‑ ‑

HER HONOUR:   Yes, I understand.  Now, what is it that you say causes you a difficulty in relation to their Honours’ statements in this respect?

CB: They say that it protects against both direct and derivative use, if I could give your Honour a very simple example of why that it does not. Does your Honour have my outline of submissions? If she could turn to page 2, I have reprinted there section 25A(9), the terms ‑ ‑ ‑

HER HONOUR:   Yes, I have the section in front of me.

CB:   If you have the section in front of you, okay, that is fine.  Now, as a very simple example, a person suspected of fraud may be asked about their handling and movement of funds.  The Commissioner then in a position to locate derivative evidence, such as financial records that confirm the examinee’s initial statements regarding their handling of funds, turning to the terms of 25A(9), it can be readily seen that financial records located as a consequence of the examination are not evidence given before an examiner. 

They are not the thing produced for the examiner. They are not information that might enable a person who has given evidence to be examined. They are not caught in any of the terms or categories of section 25A(9) and, therefore, 25A(9) does not have the effect of restricting publication of that derivative evidence that is located by the defendants.

I note the defendants in X7 did not submit otherwise.  They, in fact, submitted – they agreed with me that it does not prevent derivative use yet the Court ruled – the minority ruled differently.  The defendants actually went into some detail ‑ ‑ ‑

HER HONOUR:   You have available to you at your trial such submissions as you wish to make concerning the admissibility of evidence and the reasons why a judge might, in the exercise of the various powers under the Evidence Act, refuse to receive evidence. 

CB:   The difficulty though there, your Honour, is that - there are a number of difficulties which I have actually outlined in my submissions.  The first is that the court, where particular impugned evidence or particular evidence is attacked as being derivative of coerced testimony, a number of difficulties arise.  The first is that the Commonwealth will, no doubt, deny that fact. 

HER HONOUR:   Sir, it is not the function of this Court to make rulings in advance of a criminal trial to guide the trial judge as to the exercise of the trial judge’s powers and the discretions conferred on the trial judge under the Evidence Act. 

CB:   I certainly do not submit that they should guide the trial judge in the exercise of their discretion, only in the actual effect and operation of the law.  This is where it poses a challenge to the judge’s exercise of discretion.  The challenge is that they have to take into account the likelihood in their discretion that the evidence has been derived from coerced testimony and on the authority of the minority judgment they have to conclude that it is highly unlikely that it actually has been, which imposes a very high burden.  So that finding as to the operation of 25A(9) actually creates a burden to the exercise of the trial judge’s discretion. 

The second issue is that I would have to manifest the…..that I complain of in attempting to show that particular evidence had been derived from the examination because I would have to adduce evidence of the answers given at the Commission in order to attempt to show some connection between the answers given at the Commission and the evidence adduced at the trial.  Thereby, I would have to prejudice myself in a forensic manner by disclosing my defences in order to attempt to show. 

So it puts an accused person in an impossible evidential position because, on the one hand, they have these findings that say that evidence cannot be derived from information at the Commission which creates the difficulties in the exercise of the trial judge’s discretion previously described but also because they will have to prejudice themselves and because it is – I note under the previous National Crime Authority Act

where derivative immunity was conferred, it was the responsibility of the prosecution to bear the onus.  Now, I know that is not a matter for this Court ‑ ‑ ‑

HER HONOUR:   Indeed, it is not, sir.  Now, is there anything further you want to put about the reasons why you should be given leave to amend the pleading, effectively, to plead an entirely separate new set of claims for relief?

CB:   I would say that these claims are always implicit and contained within the previous claims.  I have just delineated the issues in the nature of the interference that remain following the judgment in X7.  So these issues would have necessarily been canvassed had I proceeded with my initial claim.  Each and every one of these issues would have needed to have been canvassed.  It is merely delineating those issues that remained.

HER HONOUR:   Yes, all right.  Is there anything further you want to put?

CB:   No, your Honour, only to emphasise the practical difficulties that the erroneous – I submit, erroneous interpretation of the 25A(9)’s effect has on the exercise of the trial judge’s discretion and their ability to ensure a fair trial.

HER HONOUR:   Yes, thank you.  Mr O’Meara.

MR O’MEARA:   Your Honour, can I address first the question of derivative use and the potentiality or no of the relief that the plaintiff seeks arising from X7?

HER HONOUR:   Yes.

MR O’MEARA:   It is necessary to go somewhat back into the facts of this matter.  The first proposition is that at the examination on 18 September 2009 a direction under 25A(9) was made by the examiner and your Honour will see the text of that direction in the reasons of Judge Murrell at paragraph 35.  We put that as exhibit KLA‑1. 

HER HONOUR:   Just bear with me.  Yes, paragraph 35.  Yes.

MR O’MEARA:   Just moving next to the judgment of the Court of Criminal Appeal, at paragraph 27 the Chief Judge at Common Law recorded, of course:

The DPP –

pursuant to that direction did –

not have a copy of the transcript –

of the examination.  There was a focus at the trial and in the Court of Criminal Appeal on the position of a federal agent Hussain.  He had been seconded – he was a federal policeman, had been seconded to the Crime Commission and was present in the examination.  That was addressed by the Chief Judge at Common Law at paragraph 129 and following.  The gravamen of the findings of the Court of Criminal Appeal is that federal agent Hussain had given evidence that he had secured the notes, et cetera, of the examination and had not communicated to any other person.  Nothing to contradict this evidence and he was not challenged, et cetera. 

That was the foundation or one of the foundations for the finding that there was no basis for a stay.  So moving then to the question of the prospect of derivative or the use of any evidence derived as a result, of course, that use would not be by the Crime Commission who is not a prosecuting agency and it would not be by the Commonwealth.  It would be by the DPP and the evidence is the DPP has never had that material.

HER HONOUR:   I see.

MR O’MEARA:   Other than that, I am not sure there is much I need to say to your Honour except to observe that one, these proceedings were originally commenced to obtain the relief in X7 which was directed to whether or not the examination was unauthorised.  We consent to relief vindicating the plaintiff’s position in that respect.  The next question is what is the impact of the examination on the criminal trial and, as we submit in the written submissions, that is a matter which should be left to the criminal court.  If your Honour pleases.

HER HONOUR:   Yes, thank you.  Mr Williams, do you wish to be heard at this stage?  I propose hearing further from the plaintiff.  At this stage, the issue is whether or not leave should be given to amend, which is rather before we get to a consideration of whether your client should be joined.

MR WILLIAMS:   I will reserve my position.

HER HONOUR:   Yes, thank you, Mr Williams.  Yes.

CB:   Just turning to what the attorneys have said, they correctly note that regarding officer Hussain that is, however, a completely separate and parallel issue to the one I am raising which is that 25A(9) does not prevent the Commission from obtaining and publishing evidence.  That is a completely separate and parallel route.

HER HONOUR:   I am sorry, sir, I am not sure that we may not be at cross‑purposes.  As I would apprehend it, the terms of the order or orders that the first defendant is willing to consent to would protect you in that respect.

CB:   They would not.

HER HONOUR:   Now, your concern is that the first defendant, that is, the Australian Crime Commission, might make use of answers that you gave at your examination concerning the pending charge.

CB:   Might have made use already, your Honour.  There has been a period of years between now and the examination so they may have – I have deep suspicions about much of the evidence that is ‑ ‑ ‑

HER HONOUR:   You would appreciate it really does not advance matters for you to raise with me your suspicions.

CB:   Yes, I realise ‑ ‑ ‑

HER HONOUR:   The evidence is that at the time of the examination an order was made by the examiner, that is, the order recorded in the primary judge’s reasons at paragraph 35 directing that, among other things, the contents of the documents, any information that might enable you to be identified and the like were the subject of a non‑publication order.

CB:   Yes, your Honour.  What I am saying is, for the reason that I gave, that that order does not prevent the derivative use – so, the example that I gave with a person, say, suspected of fraud, they can give evidence about their handling of certain moneys and the Commission can then locate financial records and those records are not caught by the terms of 25A(9) so they are not – that derivative information is not protected whatsoever.
Section 25A(9) does not – if you look through the terms, the financial records in that example given, they are not evidence given before an examiner. They are not a thing produced to the examiner. They do not fall under any of the categories for non‑publication at all. So this is a ‑ ‑ ‑

HER HONOUR:   Sir, the answers that you gave were the subject of the non‑publication order?

CB:   Yes, but the ‑ ‑ ‑

HER HONOUR:   You are being prosecuted by the Commonwealth Director of Public Prosecutions in relation to charges that were laid before you gave those answers.

CB:   Yes, but evidence was produced after the examination, I note, your Honour. 

HER HONOUR:   Yes, now given that the answers were not to be disseminated, having regard to the terms of the order, and given the unchallenged evidence of agent Hussain ‑ ‑ ‑

CB:   But that is only one aspect of it.  Your Honour, there is an entirely separate and parallel aspect which is that, yes, the answers cannot be disseminated.  I accept that.  I do not challenge that whatsoever.  What I say is that once the Commission have the answers they can locate derivative evidence which is not the subject of non‑publication.  That not only can be published but, in fact, must be published pursuant to 12(1) where it is evidence of a kind that would ordinarily be admissible in proceedings.  So financial records, from the example, they would be admissible; they have to be disseminated. 

HER HONOUR:   All right, well, I think I understand your – is there anything else you want to put in reply?

CB:   Yes, the potential is not only for physical evidence to be adduced or produced by that – certainly also forensic advantage may be conferred without the prosecution ever having actually seen the answers given by the accused person.  For example, where an accused person in the course of examination claimed to be in a different location at the time a crime was alleged to have been committed where innocent explanations for acts that police prosecution claim are in furtherance of a crime where the Commission may gather and disseminate derivative evidence that affirms these defences without actually conveying the answers that were given by the accused person.  So, in that sense, they still are afforded the forensic advantage of an opportunity to reformulate the accusations. 

HER HONOUR:   Sir, this rather highlights the matter that I took up with you some time ago which is how one might frame an order to address the concerns that you are now agitating.  The Court is not going to grant declaratory relief other than in a case where there is some utility in it and where one can frame an appropriate declaration. 

CB:   Yes.

HER HONOUR:   Now, you raise a point for which you might find some support in the decision in X7 that the compulsory examination of a person respecting the subject matter of a criminal charge laid against that person may operate to restrict or confine the choices that the person can make at his or her trial.  So be it.  You have been the subject of a compulsory

examination that has apparently touched matters, the subject of the pending trial.  That is a matter of history.  What can be done respecting that unauthorised aspect of the compulsory examination is to endeavour to quarantine it in the way proposed by the orders that the first defendant is prepared to consent to.  It seems rather difficult to frame an order that would have the effect of preventing the forensic disadvantage that you have just nominated.

CB:   Yes, okay, that is one aspect to it.  There were several issues wrapped up in what your Honour has just put to me then.  I would say, firstly, that whilst I acknowledge your Honour’s point about that it would be difficult to frame any kind of a declaration to deal with derivative evidence use, this is why the amendment about the – subsection (1) of the proposed orders concerning the declaration on derivative use, that at least gives guidance to the – not guidance, but it facilitates the trial judge’s discretion in, I guess, their evaluation of the effect of the law and the need or likelihood of derivative evidence use.  So that is the – I guess the main utility will be that they are aware of this potential ‑ ‑ ‑

HER HONOUR:   Will facilitate the exercise of the trial judge’s discretion.  Is that the main utility?  Well, now, sir, in the event I was not disposed to grant the leave that you seek, do I take it you would wish the proceedings to be disposed of by the making of the orders to which the first defendant is prepared to consent?

CB:   In place of no orders then I guess so, but I cannot help but think that – does your Honour appreciate what I am saying that there is an entirely parallel channel of derivative evidence use that no court has yet appreciated and which the defendants agreed with in X7.  It is not fanciful.  It is not speculative.  It is a concrete reality that this channel of derivative evidence use exists.  Yet, the courts ‑ when the matter falls before courts in their exercise of their jurisdiction to exclude evidence, they will necessarily be guided by the High Court’s decision – minority decision, which says that 25A(9) effects a complete quarantine so that they have to conclude from that that the impugned evidence is highly unlikely to have been derived whereas it is not. 

HER HONOUR:   Yes, thank you, sir.

The plaintiff commenced proceedings by writ of summons filed on 9 October 2012 claiming declaratory and injunctive relief arising out of his compulsory examination before the first defendant, the Australian Crime Commission (“the Commission”), on 15 September 2009. The plaintiff had been charged on 4 June 2009 with conspiracy to manufacture a commercial quantity of a controlled drug under section 305.3 of the Criminal Code Act 1995 (Cth). His compulsory examination is accepted to have included questioning on matters the subject of that pending charge.

The relief claimed by the plaintiff in his summons may be summarised as follows: first, a declaration to the effect that Division 2, Part II of the Australian Crime Commission Act 2002 (Cth) is invalid in that in its provision for the compulsory examination of a person charged with an offence in relation to matters relevant to that offence; secondly, a declaration that the plaintiff’s examination on 15 September 2009 was unlawful; thirdly, an injunction requiring the destruction of the transcript of the examination and all other documents relating to it; and, fourthly, unspecified “other relief in relation to the pending criminal proceedings against the plaintiff”.

On 25 October 2012, Justice Kiefel dismissed an application by the plaintiff to place before the Full Court in the hearing of X7 v Australian Crime Commission a copy of written submissions.  Her Honour ordered that the proceedings be adjourned generally to be brought on by notice when the outcome of the proceedings in X7 was known.  Judgment in X7 was delivered on 26 June 2013. 

On 5 September 2013, I made consent orders disposing of the proceedings in X7.  These comprised a declaration that the AustralianCrime Commission Act does not authorise an examiner appointed under section 46B(1) to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence; secondly, an order restraining the first defendant from examining or resuming the examination of X7 until the determination of the criminal proceedings; thirdly, an order requiring the first defendant to retain and seal any recording, transcripts or the like of the examination conducted by it of X7 about the subject matter of the charged offences.

On 13 August 2013, the defendants conveyed to the plaintiff their willingness to consent to orders disposing of these proceedings in the same form as those made in X7. 

The plaintiff has filed and served an outline of submissions and annexed to his affidavit, affirmed on 5 December 2013, is an amended statement of claim. In his affidavit, the plaintiff notes that the issue of the validity of Division 2 of Part II of the AustralianCrime Commission Act no longer arises.  He submits that the Commonwealth is no longer a necessary party to the proceedings and should be removed and that in order that all questions in the matter are completely determined, it is necessary that the Commonwealth Director of Public Prosecutions be joined as a party.

The plaintiff is due to face trial for the conspiracy offence commencing on 3 February 2014. The plaintiff seeks leave to file an amended statement of claim conformable with the draft which is annexure A to his affidavit. The relief claimed in the proposed pleading seeks to agitate a different set of issues concerning the effect of a direction made under section 25A(9) of the AustralianCrime Commission Act respecting the derivative use of information gained in an examination, the consequence of any derivative use of that information at his pending criminal trial and respecting the burden and standard of proof that derivative use has been made of answers given at the compulsory examination.

The proceedings as brought were directed to establishing the legality of the compulsory examination conducted on 15 September 2009 and to obtaining injunctive relief concerning the use to be made of the transcript and other documents created in connection with that examination.  It was envisaged that at the time the proceedings were before Justice Kiefel that the plaintiff’s entitlement to relief would abide the outcome of those proceedings.

The defendant submits that the amendment should not be granted because there exist insurmountable difficulties to the grant of the relief sought to be claimed.  It is common ground that the declarations sought in paragraph 7(i) to (iii) are declarations sought to establish a foundation for the plaintiff to advance submissions at his trial concerning the effect of the examination on 15 September 2009 and the possibility of the use of derivative information at trial.

The plaintiff accepted the practical difficulty in framing an order appropriate to prevent the forensic disadvantages which he claims have flowed from the fact of the compulsory examination.  He submits the utility in the declarations that he seeks is that they would facilitate the trial judge’s exercise of the discretions conferred on the judge under the Evidence Act respecting the admission of evidence.  It is accepted that were the amendment allowed and directions given for the future conduct of the matter, inevitably the plaintiff’s criminal trial would have to be adjourned. 

It is trite to note the reluctance with which this Court approaches applications for declaratory relief, having the effect of fragmenting or interrupting the criminal trial process.[1]  There is no utility in the declarations that the plaintiff claims in the draft amended pleading in paragraph 7(i) to (iv).  In paragraph (v), the plaintiff seeks to claim injunctive relief restraining the Commission from retaining and/or making any further use of the transcript of the examination or any documents relating to or evidence in the said examination or derived from its content.

[1] Sankey v Whitlam (1978) 142 CLR 1 at 25-26 per Gibbs ACJ; Pan Laboratories Pty Ltd v The Commonwealth (1999) 73 ALJR 464 at 466 [11].

As I have noted, the plaintiff acknowledges the practical difficulty of framing an order respecting the latter part of that claim, embraced by the words “derived from its content”.  It is not appropriate that this Court grant declaratory relief to “facilitate” the exercise of the trial judge’s discretion.  It is not appropriate to grant the plaintiff the leave that is sought.  The plaintiff accepted that in the event leave was not granted, the proceedings should be disposed of by making the orders proposed by the defendants. 

Now, Mr O’Meara, I just cannot locate a copy of those.  Where do I find them?

MR O’MEARA:   Your Honour will find them behind tab 5 of the exhibits.

HER HONOUR:   Yes, thank you.  I make the following orders:

1.Leave to file an amended statement of claim in the form of annexure “A” to the plaintiff’s affidavit affirmed 5 December 2013 is refused.

I make the following further orders:

2.The first defendant by their officers, examiners, servants, agents and employees be restrained, until determination by curial process of the criminal responsibility of the plaintiff for the alleged indictable offences with which he has been charged (“the charged offences”), from examining or resuming the examination on oath or affirmation of the plaintiff in respect of the subject matter of the charged offences.

3.The first defendant by their officers, examiners, servants, agents and employees retain and seal any recordings, transcripts, tapes, computer discs or computer records of the examination conducted by the first defendant of the plaintiff on 15 September 2009 about the subject matter of the charged offences.

Are there any further orders?

MR O’MEARA:   Perhaps your Honour should formally otherwise dismiss the statement of claim.

HER HONOUR:   Yes, I should. 

4.        The summons and statement of claim be otherwise dismissed.

No further orders?

MR O’MEARA:   Nothing, your Honour.

HER HONOUR:   Yes, very well.  I will adjourn.

AT 10.53 AM THE MATTER WAS ADJOURNED