CB v Australian Crime Commissioner and Commonwealth of Australia

[2012] HCATrans 267

[2012] HCATrans 267

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

Summons

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 25 OCTOBER 2012, AT 10.17 AM

Copyright in the High Court of Australia

HER HONOUR:   Yes, you appear for yourself.

CB:   I do, your Honour.

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

MR M.J. O’MEARA:   It is O’Meara, your Honour, I appear for the defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.So I might hear from the plaintiff first.  You are seeking effectively to intervene in X7’s proceedings by asking that your written submissions be placed before the Court in that matter, is that correct?

CB:   I would cast it slightly differently than that, your Honour.  I would say that I ask the Court to have regard to my proceedings, that they are related and that the disposition of X7’s matter will almost certainly decide my matter.  So, I would just, I guess, ask the Court to have regard to related proceedings rather than, I guess, formally seeking to intervene in X7.

HER HONOUR:   Well, it is rather a large step.  It is one thing to ask, as you did in your affidavit, that written submissions be placed before the Court in another matter.  It is quite another thing to effectively ask the Court to take on board your matter which has a number of differences from X7’s, it is not the same.  And, of course, it suffers from the problem that special leave was refused in relation to your matter.

CB:   Yes.  There are different considerations that attended.  That was a case for a permanent stay.  Whether or not that was a sense of an appropriate vehicle for a permanent stay, a case dealing with a permanent stay is, I guess, somewhat a different question as to whether the effect of the legislation and whether it is constitutionally valid.

HER HONOUR:   Well, for the purpose of today, I intend to confine you to the matter raised in your affidavit which is whether or not the submissions be made available in X7’s matter, because there are much wider issues involved in effectively whether or not your matter should be listed for a matter that is to be heard in a couple of weeks’ time.  So, that is not a matter that I intend to entertain today.

In relation to the question of whether your written submissions should be made available in the other matter, as you say, you might have some benefit from the other proceedings if X7 is successful, but that is really by way of a side wing because of the differences in your matter.  The outcome there will not directly resolve your matter.  It may decide questions of law that you might be able to rely on, but that is it really.

CB:   It will not decide the matter insofar as the permanent stay, I acknowledge that, your Honour.  It also has implications for the subsequent trial if it is to go ahead because, for example, questions of derivative evidence used within the trial, any forensic advantages that may have been gained.  These questions will be dependent on the High Court’s interpretation of the effect of the non-publication directions under the ACC Act.  So, it has a material effect.  The Court’s interpretation of the non-publication directions has a material effect on the subsequent trial.

HER HONOUR:   Now, in X7’s Case, the Chapter III question which often referred to as the Kable question, is squarely raised and the outline of argument shows that that is going to be fully argued.

CB:   Yes.

HER HONOUR:   The matter, as I understand your contention, is that you want to raise another matter which is really, as I understand it, whether or not the decision of the Full Court of the Federal Court in Australian Crime Commission v OK (2010) 18 FCR 258 is correct.

CB:   Yes, that is correct, your Honour.

HER HONOUR:   Now, that is a matter which – that decision and how it interacts with or is explained by reference to the decision of this Court in Hammond v The Commonwealth 152 CLR 188, was a matter which was addressed in your application for special leave and the Court said it was not an appropriate occasion to revisit what had been said in Hammond.

CB:   I think that was based on the factual circumstances, that we could not definitively demonstrate that information had made its way to the prosecuting authorities.  Those factual elements are less significant in the current proceedings because ‑ ‑ ‑

HER HONOUR:   Well, I think partly because of those facts, I think, both the Court of Criminal Appeal and the Court hearing special leave said that – referred to the orders for confidentiality which had been made in your favour and implicitly seemed to recognise that you had a level of protection.

CB:   Yes.  I do not think it was ever satisfactorily explained why they reached the conclusion …..   It was found but it was never explained how the non-publication direction actually affected derivative evidence use.  That is all I can say about that.

HER HONOUR:   Today I am only concerned with this question of the use of, if any, your written submissions by way of intervention in the other proceedings.  But it might be necessary in relation to the directions to be made generally in relation to the case that you filed to discuss the wider orders.  You seek declarations of invalidity and injunctions in relation to the use of that matter.  I imagine you would be awaiting the outcome of X7 before you sought to proceed further in this matter.

CB:   Yes, your Honour, I think as a matter of practicality.  I think we are not going to get ‑ ‑ ‑

HER HONOUR:   No, and ‑ ‑ ‑

CB:   Sorry.

HER HONOUR:   And I see also that the defendant has raised the question of whether or not your proceedings are an abuse of process, but I imagine that would be put over as well.

CB:   Yes, your Honour.

HER HONOUR:   Have you received any legal advice in relation to the standing of your wider application?  I have in mind in particular the fact that the defendant has now said there may be a question about whether or not there is an abuse of process.

CB:   I have not received any advice on that, your Honour.  However, I just point out again that I think the questions are different in the context of the previous application for a permanent stay versus the current application or the current matter which is to do solely with the effect of the Act which will inevitably be discussed in X7 and will bear upon the question of invalidity of the Act or ‑ ‑ ‑

HER HONOUR:   You do not have any legal training yourself?

CB:   No, your Honour. 

HER HONOUR:   You seem to have acquired a familiarity with it anyway.

CB:   I have had some free time, your Honour, and locked up.

HER HONOUR:   And have you sought any legal advice about what you should do in relation to the hearing of your criminal matter, given the time it may take to determine the X7 matter?

CB:   Well, the trial is currently set down for 15 April 2013.  I do not know whether that will be sufficient for a judgment to be delivered and there may be some interlocutory applications concerning this Court’s pending decision.

HER HONOUR:   I will leave that to you to obtain some advice upon.  Is there anything further that you wish to add in relation to the matter?

CB:   Only that – I have only just now this morning been given a copy of the defendant’s outline of submissions.  One of the points that they raise is that it is not shown what further I would add to X7’s hearing.

HER HONOUR:   Well, I think we have covered that by reference to the decision in Australian Crime Commission v OK.  That is the area of argument that you wish to add.

CB:   That is, yes, basically the effect of the protections and the availability of derivative evidence use and ‑ ‑ ‑

HER HONOUR:   But I suppose the point is in X7, X7 brings his proceedings in the original jurisdiction of the Court by way of his own special case.  The question is whether or not you should really be permitted to require that argument to be run when his lawyers have obviously made a strategic decision not to?

CB:   Well, I accept that I have no, I guess, authority to require it to be run but I guess again I would have to say that I am just asking that the Court have regard to my proceedings.  I had originally intended that I would get to my own stated case and have the matters heard jointly so that I could put my own submissions but I just ran out of time.  I only saw the way that it was to be cast when the submissions were published on the internet and until this time I thought they would run these arguments.

HER HONOUR:   Well, I suppose the other argument as you say in terms of timing is that if your proceedings remain on foot, if the matter is not resolved satisfactorily in a way that favours you by the X7 judgment, if your matters remain on foot and are not struck out by the defendant, or effectively struck out, then you could ‑ ‑ ‑

CB:   There would be multiplicity.

HER HONOUR:   Well, if you survive an application for an abuse of process or issue estoppel or whatever, then that would be the opportunity for you to agitate a different argument from that which is sought to be run in X7.

CB:   Yes, your Honour.

HER HONOUR:   But I think it is the position that in the X7 proceedings that there is no issue being joined in the way in which you seek to agitate it.  So really, it is not really a question of developing an argument further in X7, it is really running a totally parallel argument, and I think that is a problem for you.

CB:   Yes, your Honour.

HER HONOUR:   Good, thank you.  I will hear from Mr O’Meara, thank you.

MR O’MEARA:   Does your Honour have the case stated book in the X7 proceedings, your Honour, there?

HER HONOUR:   I have sufficient excerpts from it that I can-

MR O’MEARA:   If your Honour goes to page 23, your Honour will see the case stated by his Honour Justice Gummow.  Then turning to page 26 are the two questions his Honour posed for the consideration of the Full Court.  The first one there:

Does Division 2 Part II of the Australian Crime Commission Act empower an examiner appointed under the Act to conduct an examination of the person charged with a Commonwealth indictable offence when that examination concerns the subject matter of the charge.

That raises the question of construction which it was the subject of the decision of the Full Court of the Federal Court in Australian Crime Commission v OK 185 FCR 258 and the decision of the Court of Criminal Appeal in the plaintiff’s own case. So, the quest of construction is in issue in X7 and is being agitate by the plaintiff and has been the subject of joinder of issue in the submissions of the plaintiff and defendant in the X7 proceedings.

HER HONOUR:   Yes, I see.  I had actually overlooked the submissions.  I had not realised that that was taken up.  But I am looking at the submissions now and I can see what you are pointing to, yes.  I see also there is reference to Australian Crime Commission v Stoddart. 

MR O’MEARA:   Yes.  So, there is a very large, if not complete, overlap between the points sought to be run by the plaintiff in these proceedings and the points being agitated in the X7 proceedings.  And assuming that the plaintiff does have a sufficient interest to support an application to

intervene, because as your Honour says I think that is what this really is, the question is really one for the Court as to whether the submissions of the plaintiff are necessary to enable the Court to decide the case – the issues in X7.  For our part, we have some difficulties seeing that really anything material does emerge from the plaintiff’s submissions which adds to that in the X7 proceedings.  Ultimately we accept it is a matter for the Court.

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

MR O’MEARA:   Please the Court.

HER HONOUR:   I am sorry, before I hear from the plaintiff in reply, Mr O’Meara, in relation to the future conduct of these proceedings and any directions that need to be made at this point, are the defendants content to allow the matter to be adjourned generally to await the outcome of the X7 proceedings?

MR O’MEARA:   Yes, we are, your Honour.

HER HONOUR:   I see that you have generally foreshadowed that there might be an application to strike out for abuse of process, but that is a matter which can be reconsidered sometime next year after the X7 judgment.

MR O’MEARA:   It can, and we put it no higher than a possibility at the moment.

HER HONOUR:   Yes, thank you.

MR O’MEARA:   Please the Court.

HER HONOUR:   Yes, the plaintiff, if I could hear you in reply.  You heard what was said by Mr O’Meara in relation to the argument that is going to be run in relation to ACC v OK and the Hammond Case, that they are going to be argued.  Is there any ‑ ‑ ‑

CB:   They are.  They are cut slightly differently though.  From what I understand from what I have seen of X7’s submissions, I do not know what their submissions will be in reply, but from what I have seen of their submissions, they take a different view.  They take the view of Justice Spender in the minority judgment in ACC v OK, who took the view that it was irrelevant whether or not information could make its way to the prosecuting authorities, that it was the very fact of examination that was the prejudicial element. 

I actually seek to agree on my argument in demonstrating the potential for information flow to the investigating authorities, so I would see that as a material and significant difference and I think it is particularly significant given the way that the defendants in X7 have cast their arguments saying that their ability to question – charge people arises as a result of the protections and they say that an unmistakable expression parliamentary intent is not necessary because there is no effect on parallel proceedings that would necessitate the, I guess, express words or the necessary implication from the statute.  They say there is no actual material effect that would necessitate that expression parliamentary intent.  So, I think it is a pivotal point that undercuts the defendant’s submissions.

HER HONOUR:   Yes, thank you.  Is there anything else you wish to add?

CB:   No.  The only other thing I would say, your Honour, is that I guess the reason I have taken the path I have taken in seeking to put my submissions before the Court would only be for the, I guess, expedience of the matters and to avoid more proceedings and avoid the same issue being litigated twice, if it became necessary in due course.  So, those are my submissions, your Honour.

HER HONOUR:   Thank you.

Special leave to appeal from the decision of the New South Wales Court of Criminal Appeal was refused by this Court on 22 June 2012. The plaintiff now seeks orders for declarations that Division 2 of Part II of the Australian Crime Commission Act 2002 (Cth) is invalid to the extent that it allows examination of charged persons and that it constitutes an interference in the judicial process in that it impairs the institutional character of the courts, and that the examination of the plaintiff on 15 September 2009 was unlawful and is a nullity. Injunctions are also sought to prevent the Australian Crime Commission from retaining the transcript of the examination and requiring it to destroy that transcript.

The making of these wider orders is not a matter to be determined by me today.  The defendant has indicated that there may be a possibility that the plaintiff’s application be viewed as an abuse of process.  But the further conduct of the plaintiff’s wider proceedings and any application by the defendant will, the parties accept, abide the outcome of the matter in X7 v Australian Crime Commission.

The order with which I am concerned today is contained in a recent affidavit filed by the plaintiff who is self-represented.  It is an order that his submissions filed in this matter be placed before the Full Court of this Court, which is due to hear the X7 matter on 7 November next.  The application is therefore in the nature of a request for the right to intervene by way of submissions.  During oral argument this morning, the plaintiff sought to take the matter further and to have the Full Court on 7 November effectively hear his matter with that in X7.

I indicated that I would not entertain that wider application, given the short period within which the matter in X7 is to proceed to hearing.  If the judgment in X7 does not resolve the matter for the plaintiff, and if his proceedings remain on foot after any application brought by the defendant, then any issues not determined in the X7 proceedings can be dealt with at a later point. 

The defendant correctly points out that CB is not a person whose interests are directly affected by the decision of the court in the X7 proceedings in the sense that he will be bound by it.  It would only be that if X7 were successful that the plaintiff would, as it were by a side wind, gain some advantage. 

The question whether the plaintiff’s written submissions ought to be placed before the Court in X7’s proceedings raises the question as to whether there is any matter contained in them which may not be raised by X7’s argument.  There is also the question as to whether there are issues raised in X7’s proceedings which are not joined in this plaintiff’s proceedings.

A question which is raised in the X7 proceedings concerns Chapter III and the integrity of the court which will ultimately hear the criminal charges concerning X7 and it concerns the processes of that court.  There is nothing to suggest that the lawyers briefed for X7 will not be able to fully argue that matter.  The basis for this plaintiff’s intervention is that there is a further issue to be argued, arising out of the decision of a Full Court of the Federal Court in Australian Crime Commission v OK (2010) 185 FCR 258, where the Full Court concluded that the Australian Crime Commission Act effects an abrogation of the right not to be examined pending charges and may be seen to displace the principle in Hammond v The Commonwealth (1982) 152 CLR 188.

But, as appears from the written submissions filed for the plaintiff X7 in those proceedings, those decisions are raised for the determination of the Court.  The plaintiff suggests that there may be another aspect of the argument which he would seek to raise and is not covered by the written submissions in X7. 

That does not appear to me to be a sufficient basis for intruding the plaintiff’s argument into the X7 proceedings.  At this point it cannot be said that the arguments about the decisions will not be fully ventilated before the Full Court of this Court which is to hear the matter.  No proper basis is shown for an exercise of discretion to permit the intervention sought by the plaintiff, and the application contained in his affidavit is dismissed. 

The only other order that I would make in relation to the future conduct of the proceedings is that they be adjourned generally to be brought on by notice of the parties when the outcome of the proceedings in X7 v Australian Crime Commission are known.  Are there any further orders sought?

CB:   No, your Honour.

MR O’MEARA:  No, your Honour.

HER HONOUR:   Thank you, then the Court will adjourn.

AT 10.43 AM THE MATTER WAS CONCLUDED