CDirector of Public Prosecutions v Brady
[2016] VSC 334
•17 June 2016
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013: 0173, 0174, 0175, 0215
S CR 2014: 0047, 0048, 0049, 0058, 0079
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BARRY THOMAS BRADY & OTHERS (IN ACCORDANCE WITH SCHEDULE 1) |
---
JUDGE: | Hollingworth J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25-26, 28-29 August; 1-5, 8-9, 15, 23 September; 30 October; |
DATE OF JUDGMENT: | 17 June 2016 |
CASE MAY BE CITED AS: | CDPP v Brady and Ors |
MEDIUM NEUTRAL CITATION: | [2016] VSC 334 (Second revision 14 October 2016) |
---
CRIMINAL LAW - Persons charged with Commonwealth offences – Bribing foreign public officials – ss 11.5(1) and 70.2(1) Criminal Code Act 1995 (Cth) – Australian Federal Police investigation into alleged offences of foreign bribery committed in Nepal, Indonesia and Malaysia – Persons charged with Victorian offences – False accounting – s 83(1)(a) Crimes Act 1958 (Vic) – AFP investigation into alleged offences of false accounting committed in relation to business activities in Nepal and Malaysia
CRIMINAL LAW – Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 – Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering) 2010 – Validity of determinations – Meaning of special ACC operation/investigation – Breadth of determinations – Compliance with requirements of s 7C(3) Australian Crime Commission Act 2002 (Cth)
CRIMINAL LAW – ACC coercive examinations – Examinations for the purpose of a special ACC operation/investigation: s 24A – Summoning of persons: s 28 – The examination of suspects – Privacy of examinations: s 25A(3) – Informing witnesses of presence of persons at examination: s 25A(7) – Members of ACC staff: s 4(1)
CRIMINAL LAW – Non-publication directions – Requirements of s 25A(9) – Whether examiner complied with requirements
PRACTICE AND PROCEDURE – Application for permanent stay – Forensic disadvantage – Use of examination material – “Locking in” accused – Locating documents – Obtaining witness statements – Compilation of briefs – Voluntary disclosure – Inability to quarantine ACC material from indirect use – Whether fair trial possible – Whether stay should be granted
CONSPIRACY – General principles – Foreign bribery offence – Co-conspirator’s rule – Availability of substantive offences – Duplicity – Conspiracy between a company and a director – Adequacy of particulars of charge – Criminal Code Act 1995 (Cth) ss 11.5, 70.2.
DISMISSAL IN THE INTERESTS OF JUSTICE – Meaning of interests of justice – Onus of proof – Nature of relief – Whether factors relevant to dismissal must be related to conspiracy charges – Possible alternative charges – Aiding and abetting – Commission by proxy – Territoriality provisions – Whether alternative charges are sufficient and effective – Other relevant considerations - Criminal Code Act 1995 (Cth) ss 11.2, 11.3, 11.5, 70.2, 70.5.
STAY OF PROCEEDINGS – Abuse of process – Right to a fair trial – Deficiencies or malpractice in investigation – Delay – Prejudicial publicity.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Robinson QC and Mr K Armstrong | Commonwealth Solicitor for Public Prosecutions |
| For Barry Thomas Brady | Mr M Cahill Mr M Stanton (June 2015) | Hicks Oakley Chessell Williams |
For Peter Sinclair Hutchinson | Mr C Mandy | Jimmy Lardner & Associates |
| For John Leckenby | Mr C Thomson (2014) | Holding Redlich |
| For Steven Kim Chow Wong | Mr P Tehan QC and | Slades & Parsons |
| For Christian Boillot | Mr P Higham and | Doogue O’Brien George |
| For Myles Andrew Curtis | Mr M Gullaci | Tony Hargreaves & Partners |
| For the Australian Crime Commission (intervener) | Ms S Maharaj QC | Australian Government Solicitor |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Relevant criminal proceedings................................................................................................... 2
The history of the current applications...................................................................................... 4
General observations about the evidence................................................................................. 6
The ACC stay application............................................................................................................... 10
Overview of the application...................................................................................................... 10
The principles governing a stay application.......................................................................... 12
Operations and investigations under the ACC Act............................................................... 14
Examinations under the ACC Act............................................................................................. 21
The validity of the ACC board determinations...................................................................... 62
Special ACC operations and investigations............................................................................ 82
The purpose of the examinations............................................................................................. 93
The examination of suspects..................................................................................................... 98
Summoning the ACC accused................................................................................................. 102
The status of the ACC accused before and during their examinations............................ 113
The conduct of the examinations............................................................................................ 117
Dissemination of examination material................................................................................. 137
Forensic disadvantage.............................................................................................................. 152
Conclusions on the ACC application..................................................................................... 175
The other applications................................................................................................................... 185
Overview of the applications.................................................................................................. 185
Alleged defects in the conspiracy charges............................................................................ 186
Alleged deficiencies or malpractice in the AFP investigation........................................... 228
Delay and the loss of evidence............................................................................................... 249
Prejudicial pre-trial publicity................................................................................................. 255
Personal factors relevant to the accused................................................................................ 259
The weakness of the cases against Brady and Hutchinson................................................ 261
Conclusions on the other applications.................................................................................. 262
SCHEDULE 1 - PARTIES............................................................................................................. 264
SCHEDULE 2.................................................................................................................................. 265
HER HONOUR:
INTRODUCTION
The six accused are all former employees of Note Printing Australia Limited (“NPA”) or Securency International Pty Ltd (“Securency”).[1] At the relevant times, NPA was a wholly-owned subsidiary, and Securency was a partially-owned subsidiary, of the Reserve Bank of Australia. NPA prints banknotes for the RBA and other central banks, using polymer substrate supplied by Securency.
[1]Four of the accused worked for NPA, in the following roles: John Leckenby as Chief Executive Officer; Peter Hutchinson as Corporate Services Manager and Company Secretary; Barry Brady as Marketing Manager Assistant (then Business Development Manager); and Steven Wong as Marketing Manager, Asia. Myles Curtis was the Managing Director of Securency. Christian Boillot initially worked for NPA as International Sales and Marketing Manager Africa/Europe/Middle East, then transferred at the start of 2002 to work for Securency, as Director, Banknote Specialist Support.
The accused have all been charged with conspiring to bribe foreign bank officials, contrary to ss 11.5(1) and 70.2(1) of the Criminal Code Act 1995 (Cth) (“the Code”). Some of them have also been charged with false accounting, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic), in relation to payments made in connection with foreign agents. The offences are alleged to have occurred in order for NPA or Securency to secure banknote printing contracts with central banks in Malaysia, Indonesia and Nepal, at various dates between late 1999 and late 2003.
The accused now seek orders that:
(a) The charges against four of them (“the ACC accused”) be permanently stayed, on grounds arising out of their compulsory examination by the Australian Crime Commission (“the ACC application”);
(b) Further or in the alternative, the charges against all of them be permanently stayed, primarily on the basis that to do otherwise would require them to face unfair trials (“the alternative stay application”);
(c) Alternatively, all of the conspiracy charges be dismissed in the interests of justice, under s 11.5(6) of the Code (“the dismissal application”).
For the reasons that follow, I have determined that it is appropriate to permanently stay the proceedings against the ACC accused, and otherwise dismiss the applications.
Relevant criminal proceedings
John Leckenby, Barry Brady, Peter Hutchinson and Myles Curtis were arrested and first charged on 1 July 2011. Christian Boillot, a French citizen, was arrested in Germany on 1 July 2011, extradited to Australia and charged. Steven Wong was first charged on 13 March 2013. All of the accused have been on bail since they were charged.
The combined committal proceedings ran for 112 sitting days, over a period of more than 2 years, between August 2012 and March 2014.[2] Their completion was delayed, in part, by appeals to this court concerning the service of certain witness summonses by Leckenby.[3]
[2]The committal proceedings in respect of Indonesia, Malaysia and Vietnam were heard together over about 93 sitting days. Nepal was dealt with as a discrete committal over about 19 days.
[3]The initial appeal against the magistrate’s order was heard by Sifris J: McKenzie & Anor v Magistrates’ Court of Victoria & Anor [2013] VSC 2. The further appeal was heard in the Court of Appeal: McKenzie & Baker v Magistrates’ Court of Victoria & Leckenby (2013) 39 VR 311 (“McKenzie”), (Harper, Tate and Coghlan JJA).
NPA and Securency avoided the committal process, by agreeing to be directly indicted in this court. On 5 December 2011, both companies pleaded guilty to being parties to foreign bribery conspiracies in Indonesia and Malaysia. Securency also pleaded guilty to a conspiracy charge relating to Vietnam. NPA also pleaded guilty to a similar charge relating to Nepal. On 17 July 2012, I sentenced the two companies, imposing fines on them both.[4] They had already been the subject of substantial pecuniary penalty orders, made in the County Court of Victoria in November 2011.
[4]R v Note Printing Australia Limited & Anor [2012] VSC 302R (“companies sentence”).
On 20 August 2012, I sentenced David Ellery, the former Chief Financial Officer of Securency, in respect of a single count of false accounting in Malaysia.[5] That offence occurred in mid-2006, well after the period of any of the alleged conspiracies. Ellery undertook to assist the CDPP in relation to the prosecution of the individuals alleged to have been involved in foreign bribery. In October 2012, Ellery gave evidence at the committals in relation to Indonesia, Malaysia and Vietnam.
[5]R v Ellery [2012] VSC 349 (“Ellery sentence”).
On 3 October 2013, I sentenced Radius Christanto, the former Indonesian agent of NPA and Securency, in respect of a single foreign bribery conspiracy charge in Indonesia.[6] He gave an undertaking to assist the prosecution, and gave evidence at the committals.[7]
[6]R v Christanto [2013] VSC 521R (“Christanto sentence”).
[7]The AFP’s conduct in relation to taking evidence from Christanto is the subject of specific criticism by the accused, and will be considered later in these reasons, at [1136] and following.
At the conclusion of the committals:
(a) No individuals were committed to stand trial in relation to the Vietnamese or Nepalese conspiracies;[8]
(b) In relation to the Indonesian conspiracy, the CDPP withdrew the charges against Hutchinson and Mitchell Anderson,[9] and the magistrate discharged Leckenby and partially discharged Curtis; and
(c) In relation to the Malaysian conspiracy, Brady and Clifford Gerarthy[10] were discharged, and Curtis, Leckenby and Boillot were committed to stand trial.
[8]Curtis, Ron Marchant (Director of Business Development, Korea and Philippines, for Securency) and Gerarthy were all discharged in relation to Vietnam. Brady, Hutchinson, Leckenby and Wong were all discharged in relation to Nepal.
[9]Anderson was the Commercial Manager of Securency.
[10]Gerarthy was Business Development Manager, Asia Pacific, for Securency.
The current proceedings in this court were commenced by the filing of indictments by the Commonwealth Director of Public Prosecutions at various times between December 2013 and May 2014.[11] In some cases, the accused had been committed to stand trial for the relevant charges; in most cases, the CDPP exercised his power to directly indict, after the accused had been discharged at committal.
[11]Schedule 1 identifies the current charges against each of the six accused.
There is one other person who is currently facing a single charge of false accounting in Malaysia, namely, Gerarthy.[12] He is not a party to the current stay or dismissal applications.
The history of the current applications
[12]Proceeding S CR 2014 0080.
At the committals, the accused sought to have the conspiracy charges dismissed in the interests of justice under s 11.5(6) of the Code, on many of the grounds relied upon here, including prejudicial publicity, and misconduct by the investigators and prosecutors. However, in McKenzie, the Court of Appeal held that a magistrate has no power to dismiss under s 11.5(6).[13]
[13]McKenzie, [51].
Once all the indictments had been filed in this court, the accused foreshadowed that they proposed to make the current applications. Timetables and procedural matters were finalised over several directions hearings. The parties’ initial estimate was that the evidence for the ACC application would take a couple of weeks, and the hearing of all three applications would be completed in just over one month.
Since these proceedings were commenced, there have been further developments in the law regarding the relevant provisions of the Australian Crime Commission Act 2002 (Cth) (“the ACC Act”). To some extent, that affected the way that arguments developed and evidence was led.
On 28 August 2014, early in the hearing of the ACC stay application, I granted the ACC leave to intervene in the application; no party opposed that course. That leave was limited to making oral and written submissions in relation to issues affecting the ACC (including the examiner, as well as ACC staff), and objecting to the leading of evidence on the grounds of legal privilege or public interest immunity. The ACC did not seek to call or examine any witness; all ACC witnesses were called by the CDPP.
Many of the relevant ACC documents were provided to the ACC accused in response to subpoenas issued for the purposes of this hearing. The accused also made numerous calls on the ACC, AFP and CDPP, to produce unredacted versions of documents that had been provided in a redacted form. During the course of the hearing, I inspected the unredacted versions of a very large number of documents, and heard submissions concerning them, in order to rule on numerous claims to legal privilege or public interest immunity (including claims by non-parties, such as the AFP or AUSTRAC), a task which would also need to be done before any trial could proceed. On occasions, this process led to the disclosure to the accused of previously redacted material, some of which was of considerable importance to the current applications.
During the course of the hearing of the ACC application, an issue arose as to whether, by reason of s 123 of the Evidence Act 2008 (Vic), the AFP and CDPP could maintain a claim of legal privilege in respect of communications concerning a large number of matters, which were highly relevant to the ACC application. They included legal advice in relation to the following: to what extent examination of evidentiary holdings is necessary before the conduct of ACC examinations; the lawfulness of the dissemination of the ACC examinations of each ACC accused; the conduct of the AFP investigation; the sufficiency of the evidence against each ACC accused; whether any of the ACC accused ought be charged, and if so, when; and why it was decided to lay direct indictments against those ACC accused who had been discharged at committal.
The hearing of the ACC application was adjourned part-heard, while the Court of Appeal considered the matter on a case stated.[14] The Court of Appeal ultimately upheld the claim to privilege.[15]
[14]Director of Public Prosecutions (Cth) v Galloway & Others (“Galloway”) [2014] VSCA 272 (Maxwell P, Neave and Coghlan JJA).
[15]The Court of Appeal overturned the decision in CDPP v Brady & Ors (Ruling No 1) [2014] VSC 450R.
Because of the extraordinary volume of documents involved in this case, the documentary evidence relied upon was largely contained in an electronic court book. Unfortunately, due to the very limited availability of criminal court rooms that had electronic facilities, and were large enough to fit so many parties, the hearing of the applications had to be split into several large blocks of time, even after the case stated had been decided.
General observations about the evidence
Evidence for the ACC application
In some of the cases that have considered applications similar to the ACC application, appeal courts have been critical of the adequacy of the applicants’ evidence. That seems to have led to the calling of very extensive oral and documentary evidence in relation to the ACC application. The oral evidence on the ACC application ended up occupying around 30 days. As well as making oral submissions, the parties provided lengthy written submissions on the facts and the law for all three applications, totalling almost 1,000 pages. The significance of the size of the task will be discussed later in these reasons.
Initially, the CDPP filed and served witness statements or affidavits from more than a dozen CDPP lawyers and AFP officers, who the ACC accused said they wished to cross-examine. A few key officers (such as the Senior Investigating Officer, Rohan Pike, his deputy, Peta Maddigan, and the principal informant, Peter Kocalidis) were in the witness box for a number of days. As the hearing proceeded, some additional AFP and CDPP witnesses were called to give evidence.
In addition to Pike, Maddigan and Kocalidis, the following AFP federal agents gave evidence: Timothy Clinnick, Kenneth McDermott, Grant Smith, Dean Portway, Murat Bozkurt, Matthew Ustinov, Michael Lawler, Nathan Renwick and James Rowe. Evidence was also given by Tamara Bartlett, an AFP criminal intelligence analyst.[16]
[16]I will refer to all AFP staff as “AFP officers”, even though Bartlett is an unsworn member of the AFP.
The following current or former solicitors at the CDPP gave oral evidence: David Sewell, Samantha Holmes, John Barrington, and Shane Kirne. James McConnochie, an IT Security Advisor, also gave evidence for the CDPP.
The following witnesses currently or formerly with the ACC gave oral evidence: Geoffrey (known as Tim) Sage, the examiner for each of the examinations of the ACC accused; John Dines, Head of the Determination under which Brady and Leckenby were examined; Catherine (known as Kate) Deakin, Head of the Determination under which Wong and Hutchinson were examined; Christopher Bonnici, an in-house lawyer who acted as counsel assisting at each of the examinations; Julian Ayres, an in-house lawyer involved in preparing legal submissions in support of summonses; and Nicholas Cohen, an intelligence analyst.
A discrete electronic court book was prepared for the ACC application, comprising all paper documents that were individually tendered and given an exhibit number, as well as all electronic documents that were shown to witnesses.
Evidence for the other applications
No additional oral evidence was called for the other applications. Instead, the parties relied upon all oral and documentary evidence from the ACC application, together with an additional electronic court book that contained extensive transcripts and exhibits from the committals.
General observations about witnesses
The accused did not challenge the honesty or reliability of most of the witnesses. However, challenges were made to the evidence of Pike, Sage and Bonnici.
Pike was a very unsatisfactory witness. For the most part, I would describe him as being evasive, rather than outright lying. Pike spent much of his time in the witness box advocating, rather than giving evidence. Clearly an intelligent and experienced senior police officer, he used a number of techniques to try to avoid giving answers that he thought would harm the prosecution case.
Pike frequently made long-winded, self-serving, non-responsive speeches, despite my repeated directions that he should just answer the question asked of him. He generally seemed to be doing that in anticipation of where he thought the current question was going to lead, if he answered it in a particular way.
On numerous occasions, he answered “I do not remember” or “I do not recall”, even when the question was about a matter that one might reasonably have thought he would have had some memory. In giving that answer, he cut off many lines of questioning that seemed potentially problematic for the AFP. Then, when he was being cross-examined by Brady’s counsel on the third day of his evidence, he initially answered “I can’t recall”, to a question about who had telephoned him on a critical matter, before immediately qualifying that by saying “It was almost certainly – I said I can’t recall because I am not 100% but I am 99% certain it would be Peta Maddigan.” Hutchinson’s counsel put to him that it was pretty misleading to say “I can’t recall”, when what he in fact meant was “I’m not 100% certain.” It was suggested to him that a more honest answer would have been “I’m 99% sure it was Peta Maddigan and I’m not absolutely sure”, but he rejected that suggestion. Given that, over the preceding day alone, he had answered about 50 questions with either “I don’t recall” or “I don’t remember”, the extent to which he had thereby cut off potentially problematic lines of questioning became apparent.
Up until closing addresses, it was a central part of the ACC accused’s case that the ACC had no power to compulsorily examine somebody who was a suspect. Much time was spent cross-examining witnesses about whether or not the ACC accused were regarded as suspects at the relevant time. Pike was well aware of how critical this issue was to the ACC accused’s case, and seemed determined to do all he could to avoid making any concession that he perceived might harm the prosecution case. There were some matters about which Pike was prepared to make concessions, but they were clearly matters that he perceived assisted the prosecution case.
Pike regularly debated the meaning of questions or terms, which I did not regard as ambiguous or requiring debate.
That Pike was in the witness box for a total period of some 5 days was due primarily to the way in which he gave his evidence.
It was not suggested that the examiner, Sage, was dishonest, but his reliability was (for very good reason) challenged. He clearly had little independent recollection of the particular examinations, or the circumstances surrounding them. That is hardly surprising, given that he conducts hundreds of examinations every year, and was being asked about examinations held some five years before he gave evidence. His evidence was often vague and lacking in detail. He frequently admitted that he was not sure what had happened. On some occasions, he would change his evidence when shown a document that suggested a contrary answer. On other occasions, he would fall back on answering questions by reference to what he said his practice at the time would have been. I have no doubt that some of his evidence was no more than a reconstruction of what he thought would or should have happened.
Although I have reservations about the reliability of some aspects of Sage’s evidence, and will be making strong criticisms of his conduct as an examiner, I do not doubt his honesty as a witness.
Bonnici displayed a defensive attitude and an unwillingness to make concessions that he perceived would harm the ACC or Sage. Like Pike, his answers tended to be long-winded and, at times, involved an element of advocacy. His evidence was frequently inconsistent with the contemporaneous documents, or the recollections of other witnesses, including other ACC staff. On occasions, I regarded his answers as implausible, or even disingenuous.
In fact, in relation to both of Pike and Bonnici, it has not been necessary for me to make specific findings of dishonesty, in order to come to my conclusions. Accordingly, I am not going to spend time considering in great detail the various suggested examples of dishonesty.
THE ACC STAY APPLICATION
Overview of the application
The ACC accused, Brady, Hutchinson, Leckenby and Wong, were compulsorily examined before the ACC prior to being charged. Numerous AFP officers who were investigating the alleged offences were present at their ACC examinations, and/or had access to the audio recordings, transcripts and summaries of those examinations. CDPP staff were involved in the AFP investigation, even before the examinations occurred, and sought and obtained access to similar examination materials as the AFP. AFP officers met with CDPP officers and prosecuting counsel during the AFP investigation, for the purpose of briefings and advice. Prosecuting counsel provided advice to the CDPP (which was provided to the ACC) before the examinations of the ACC accused; counsel also provided advice thereafter, including the advice to lay specific charges against the ACC accused.
The ACC accused say that their examinations were conducted unlawfully, and for the purposes of the AFP. They urge the court to find that the examiner exercised his extraordinary examination powers with a reckless disregard for his legal obligations, for their rights, and for the ACC’s own procedures. They argue that the ACC was little more than a “hearing room for hire” for the AFP.
In particular, the ACC accused argue that:
(a) The two determinations relied upon as authorising their examinations were not valid determinations;
(b) The examinations were unlawful, in that they were not conducted for the purposes of a special ACC operation/investigation;
(c) The examinations were unlawful, because they were committed for one or more improper purposes;
(d) The examination material was unlawfully published to those investigating and prosecuting the ACC accused, and was used by them;
(e) By reason of those various acts of illegality, the ACC accused have singularly and collectively suffered forensic disadvantage in the conduct of their defences, and the prosecution has obtained an unfair forensic advantage, such that a fair trial cannot be held;
(f) It is not possible to “unscramble the egg” so as to remove the forensic advantage unlawfully obtained by the prosecution, or to ameliorate the forensic disadvantage suffered by the ACC accused;
(g) This case is different from other cases of illegality in the conduct and use of ACC examinations and examination material, where stays have been refused. This case involves:
(i) The deliberate coercive questioning of suspects, because they had exercised their rights to decline a cautioned police interview;
(ii) The use of the examination power for the very purpose of achieving the forensic disadvantage to the ACC accused, and advantage to the prosecution, in foreseen future legal proceedings; and
(iii) The use of the examination power where officers of the executive deliberately engineered the situation that the ACC accused now face in this proceeding: a conspiracy charge where acts and utterances of others are sought to be led against them, and where not only they, but also their alleged co-conspirators, have had their forensic choices confined.
The ACC accused say that the unlawfulness cannot be cured or retracted, and has stained the entire trial process, to such an extent that they cannot have a fair trial. They also argue that the executive should not be permitted to benefit from its deliberate unlawful conduct, which was designed to result in that unfair trial. They say a permanent stay is justified in the exceptional circumstances of this case.
In general terms, the CDPP and ACC deny that they or the AFP have engaged in any illegality or impropriety. They say that there was nothing wrong with investigating police officers being present at the examinations, or having access to examination material. The CDPP has informed the court that counsel and the CDPP officers who were involved in the ACC examinations, or have received examination material, will not be involved in the prosecution of the current charges.
The CDPP also says that the ACC accused have not demonstrated any forensic disadvantage, which cannot be remedied by the appointment of a new prosecution team. In all the circumstances, the CDPP disputes that the ACC accused cannot have a fair trial, or that there is otherwise any basis for granting a permanent stay.
The principles governing a stay application
There is no dispute as to the general principles which apply to both the ACC application and the alternative stay application.
The power to stay proceedings is a discretionary power, which derives from the court’s inherent power to protect the integrity of its processes, where the administration of justice so requires. It is a remedy that is invoked to prevent an abuse of process.
The grounds upon which a stay may be ordered include delay,[17] oppression,[18] prosecutorial misconduct,[19] destruction or loss of evidence,[20] where the court’s procedures are invoked for an illegitimate purpose, or use of the court’s procedures would bring the administration of justice into disrepute.[21] The possible grounds are not capable of exhaustive definition.
[17]Walton v Gardiner (1993) 177 CLR 378, 394.
[18]Ridgeway v The Queen (1995) 184 CLR 19, 75.
[19]Moti v The Queen (2011) 245 CLR 456 (“Moti”), 485.
[20]The Queen v Edwards (2009) 255 ALR 399.
[21]Rogers v The Queen (1994) 181 CLR 251, 286; cited in Moti.
The test is whether there is “a fundamental defect which goes to the root of a trial, of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences” then the discretion to stay is enlivened, and may be exercised to prevent the accused being tried unfairly.[22]
[22]Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J).
A proceeding will only rarely be stayed permanently, because it is in essence a power to refuse to exercise jurisdiction. The underlying principle is that the conferral of jurisdiction imports a prima facie right in the person invoking the jurisdiction to have it exercised.[23] Thus it has been said that the power is exercisable only in “exceptional cases”,[24] or “sparingly and with the utmost caution”.[25]
[23]Jago, 76 (Gaudron J).
[24]Jago, 76 (Gaudron J).
[25]Jago, 34 (Mason CJ), 76 (Gaudron J).
The policy considerations behind limiting the exercise of the power to exceptional cases were explained by Brennan J in Jago v District Court (NSW) (“Jago”). He noted that if permanent stay orders were to become commonplace “it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion in the public mind”.[26]
[26]Jago, 50 (Brennan J).
The power cannot be exercised where a court merely forms the view that the prosecution should not have been commenced or continued. The initiation and continuation of the prosecution is a matter for the executive. A court will not interfere in a decision to charge an accused person in a particular way “save to prevent an abuse of process”.[27] The focus of the power is upon the process or the proceeding, and not upon the general merits of the case.
[27]Maxwell v R (1996) 184 CLR 501, 513 (Dawson and McHugh JJ).
In determining whether an application for a stay for abuse of process should succeed, a court will have regard to whether a fair trial can nevertheless be held. In particular a court will consider the capacity of the trial judge to rule on the admissibility of evidence and to give appropriate directions to the jury, to ensure that all the relevant factual issues arising from an alleged unfairness are placed before the jury sufficient to cure the unfairness that would otherwise arise.[28]
[28]Attorney General’s Reference (No 1 of 1990) [1992] 3 All E R 169 (Lord Lane CJ).
Nonetheless, there is a fundamental right of an accused not to be tried unfairly. Where the defect is so serious that the continuation of a criminal trial will culminate in an unfair trial regardless of any efforts by the trial judge, then the court’s processes will have been misused, such as to constitute an abuse of process, because the public interest in holding a trial does not warrant the holding of an unfair trial.[29]
[29]Jago, 30-1 (Mason CJ).
There is a strong public interest in the prosecution of serious offences and the conviction of offenders. There is also a strong public interest in ensuring that judicial processes are not abused, and that the trials of accused persons are fair to them, that innocent persons are not convicted, and that public confidence in the administration of justice is maintained.[30]
[30]Salmat Document Management Solutions Pty Ltd v R [2006] WASC 65, [110].
The application of the test involves an evaluation of the seriousness of the defect that remains after any prospect of remedy has been discounted. It also involves a balancing exercise directed at determining where the interests of justice lie and, if appropriate, exercising the power to prevent injustice or to protect against unfairness. There can be no precision as to what factors must be weighed in the balance; they must necessarily vary according to the facts of the particular case.
There is no dispute that the accused carry the burden of establishing that any stay should be granted, and the evidentiary basis for it. Any facts in dispute need to be proved on the balance of probabilities.
Operations and investigations under the ACC Act
Before considering the ACC accused’s specific criticisms of what occurred, it is convenient to consider the relevant provisions of the ACC Act as they were during the relevant period, and the way in which the authorities have construed them.
The ACC generally
The ACC was established by the ACC Act, and replaced the National Crime Authority (“NCA”). Its functions include collecting, analysing and disseminating criminal information and intelligence, undertaking intelligence operations and investigating matters relating to federally relevant criminal activity.[31]
[31]ACC Act s 7A.
In performing its functions under the ACC Act, the ACC is required, as far as practicable, to work in co-operation with other law enforcement agencies,[32] and may co-ordinate its activities with similar bodies overseas.[33] The definition of “law enforcement agency” includes the AFP, and any other authority or person responsible for the enforcement of State or Commonwealth laws.[34]
[32]ACC Act s 17(1).
[33]ACC Act s 17(2).
[34]ACC Act s 4(1).
The ACC consists of the CEO, the examiners, and members of staff of the ACC.[35] Who falls within the definition of “member of staff of the ACC” is an issue that arises, and will be considered later in these reasons.
[35]ACC Act s 7(2).
Although established under the ACC Act,[36] the ACC board is not part of the ACC. It is comprised of the heads of the major federal and State investigative bodies in Australia, including the Commissioner of the AFP. The ACC board determines national intelligence priorities, and provides strategic direction to the ACC.[37] It disseminates strategic criminal intelligence assessments to domestic and foreign law enforcement agencies.[38] It also has certain powers to authorise intelligence operations and investigations, which will be considered shortly.
[36]ACC Act s 7B(1).
[37]ACC Act s 7C(1)(a) and (b).
[38]ACC Act s 7C(1)(g).
By a rather convoluted route through the relevant dictionary terms in s 4(1), it becomes apparent that the ACC Act is primarily concerned with the investigation of serious and organised crime. “Serious and organised crime” means an offence that:
(a) Involves two or more offenders and substantial planning and organisation; and
(b) Involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and
(c) Is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and
(d) Is a “serious offence”,[39] or any one of a long list of offences that includes, among other things, money laundering.
[39]“serious offence” is, itself, a defined term in s 4(1).
Bribery of foreign officials is not mentioned anywhere in the ACC Act.
The role of the ACC board in special matters
The ACC can undertake intelligence operations and conduct investigations into “federally relevant criminal activity”. The ACC board may determine that an intelligence operation or investigation is a “special” one.[40] Different powers are available to the ACC, depending on whether or not something is designated as special.
[40]ACC Act s 7C(1)(d).
Before determining that an operation or investigation is special, the ACC board is required to consider the efficacy of methods of gathering information that are less intrusive than using the powers in the ACC Act.[41] A determination that an investigation or operation is “special” requires a special majority of the ACC board.[42]
[41]The precise requirements of ss 7C(2) and (3) will be considered shortly.
[42]The required special majority is at least 9 board members, including at least 2 eligible Commonwealth board members: ACC Act s 7G(4).
When determining that an investigation or intelligence operation is special, the ACC board’s written determination must describe “the general nature of the circumstances or allegations constituting the federally relevant criminal activity” and “set out the purpose of the operation or investigation”.[43]
[43]ACC Act s 7C(4).
Although the ACC board may establish committees to assist it in carrying out its functions, it cannot delegate to a committee the function of determining whether an operation or investigation is a special one.[44] When the legislation was first drafted, it was proposed that board committees could make such determinations.[45] The fact that the ACC Act, as enacted, only permits the ACC board itself to make such determinations, highlights the importance of that function.
[44]ACC Act s 7K(1) and (4).
[45]Australian Crime Commission Establishment Bill 2002 cl 7K(8).
The role of the Inter-Governmental Committee
The ACC Act also established an Inter-Governmental Committee (“the IGC”), whose members are Ministers of the Commonwealth and States, or their delegates.[46] The functions of the IGC include monitoring the work of the ACC and the ACC board, and overseeing their strategic direction.[47]
[46]ACC Act s 8.
[47]ACC Act s 9(1).
As an additional level of oversight of special operations and investigations, the IGC must be informed of such determinations.[48] The IGC may require further information on the determination,[49] and may revoke the determination.[50]
[48]ACC Act s 7C(5).
[49]ACC Act s 9(2).
[50]ACC Act s 9(7).
The role of ACC management committees
For every special or ordinary (non-special) investigation or operation that is approved by the ACC board, the CEO nominates a Head of Investigation or Head of Operation under s 46A(2A) of the ACC Act. The position is referred to within the ACC as the Head of Determination (“HOD”). John Dines was the HOD for the determination under which the first round of examinations were held; Kate Deakin was the HOD for the later determination.
While a determination is on foot, the HOD identifies projects that they consider could appropriately be pursued under the determination. For each such project, the HOD prepares an application to the relevant management committee, seeking approval for the work to be undertaken. At the time of the first round of examinations, the relevant committee was called the Governance Operations Committee (“GOC”). The GOC was replaced by the Organised Crime Management Committee (“OCMC”).
The GOC and OCMC were internal ACC management committees, set up to assist the CEO in their responsibility to manage, co-ordinate and control ACC operations and investigations. They were chaired by an Executive Director, and consisted of all HODs, State and National Managers, and other senior members of staff of the ACC. They met, on average, two to four times per month, to consider project applications, reports and other operational matters.
Applications for project approval set out the significance of the proposed work, its alignment with determination objectives, the resources required, the expected outcomes, and any legal advice as to the legality of the proposed activity. The GOC/OCMC determined whether the project should be undertaken.
If a project was approved by the GOC/OCMC, resources were applied, which may have included analysts, investigators, lawyers and examiners. Those people would identify how best to achieve the project aims, which may (in the case of special investigations or operations) include conducting compulsory examinations. If a potential witness for examination was identified, an application would be made to an examiner.
If the relevant management committee did not approve a proposed project, the project would not proceed due to a lack of resources. But just because a committee had decided to conduct a project, it did not follow that the examiner would have to exercise their powers so as to support the project. The GOC/OCMC had no status or powers under the ACC Act. In particular, the committees had no legal power to determine that there should be an examination, or that a person should be summoned.
The GOC approved a project called Project Agrale, which dealt with matters arising under the financial crimes determination.[51] Dines, the HOD for that determination, could not recall the precise scope of Project Agrale, or when it was set up. However, it is clear from GOC documents that the project covered a very broad range of financial crimes, including money laundering. Leckenby and Brady were examined while Project Agrale was underway.
[51]That determination is discussed in more detail at [257].
The OCMC approved Project Saintly on 9 September 2010, to deal with matters arising under the money laundering determination.[52] Deakin, the HOD for that determination, said that Project Saintly was a very narrow project, specifically to address the remaining issues that had not been finalised in Project Agrale in relation to Securency. She said the project’s purpose was to provide AFP Operation Rune with the examination powers that the ACC possessed, ”to the extent that an examiner was prepared to approve them.” Wong and Hutchinson were examined while Project Saintly was underway.
[52]That determination is discussed in more detail at [264].
Both the GOC and OCMC had before them some material relating to allegations of foreign bribery involving Securency. How the foreign bribery matters first came to the attention of the ACC, and what the ACC was doing by way of investigating them at various times, will be considered later in these reasons.
The role of the examiner
The consequence of an operation or investigation being determined by the ACC board to be a special one is that it enlivens various coercive powers, including the power of an examiner to summons and examine a person, on oath, without the benefit of the privilege against self-incrimination.
If a potential examination witness is identified, ACC staff prepare an application to the examiner, which comprises a statement of facts and circumstances, legal submissions, and a draft summons. If the examiner considers it reasonable in all the circumstances to do so, they issue the summons.
Examiners have various statutory powers and obligations in relation to the conduct of examinations conducted for the purposes of a special determination, which will be considered shortly.
In deciding whether to exercise his powers, an examiner (unlike the ACC board) is not required to consider the efficacy of ordinary police methods of investigation.
Although examiners are part of the ACC (by reason of s 7C(2)), their independence is apparent from a number of features of the ACC Act. Examiners are appointed by the Governor-General,[53] not by the ACC board. Examiners can only be terminated by the Governor-General on specified grounds.[54] They are not members of the ACC board, and therefore have no role in deciding whether to designate an operation or investigation as special. Examiners also have the same protection and immunity in the performance of their functions and exercise of their powers as High Court justices.[55]
[53]ACC Act s 46B(1).
[54]ACC Act s 46H.
[55]ACC Act s 36(1).
In the explanatory memorandum for the Australian Crime Commission Establishment Bill 2002 (“ACC explanatory memorandum”), the independence of ACC examiners was described as an important safeguard in the exercise of the coercive powers. While the ACC board may determine that an operation or investigation is special, which will result in the coercive powers being available for that operation or investigation, “this does not interfere with the statutory discretion of the examiner to determine how, when and why to use those powers once a determination is in place.”[56]
[56]ACC explanatory memorandum, p 18, item 118.
None of the parties dispute the importance of an examiner exercising their powers independently. However, for reasons that will be discussed later, the ACC accused say that Sage, who examined each of them, did not properly fulfil his statutory role.
Examinations under the ACC Act
The legislative structure
The provisions which apply to examinations are contained in Division 2 of Part II of the ACC Act. Those provisions have been substantially amended, since the completion of submissions in this case.[57] At the times relevant for the purposes of the ACC application, the ACC Act provided as follows.
[57]The Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) was assented to on 30 June 2015.
Examinations could only be held for the purposes of a special ACC operation or investigation.[58]
[58]ACC Act s 24A.
Section 28 permitted an examiner to summon a person to appear at an examination to give evidence and produce specified documents or things, if the examiner is satisfied that it is “reasonable in all the circumstances to do so.” Section 29 permitted an examiner to serve a notice, requiring a person to produce documents relating to a special operation/investigation, whether or not an examination is being held.
It was an offence[59] for a person to fail to answer a summons,[60] or to refuse to answer a question or produce a document or thing required by the summons.[61]
[59]ACC Act s 30(6).
[60]ACC Act s 30(1).
[61]ACC Act s 30(2).
In particular, a witness could not refuse to answer a question on the ground of self-incrimination. However, if, before answering the question, the witness claimed that answering the question might tend to incriminate them or make them liable to a penalty, the following limited use immunity may be available.[62] Section 30(5) provided that:
[62]ACC Act s 30(4).
The answer, or the document or thing, is not admissible in evidence against the person in:
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a penalty;
other than:
(c) confiscation proceedings; or
(d) a proceeding in respect of:
(i) in the case of an answer – the falsity of the answer; or
(ii) in the case of the production of a document – the falsity of any statement contained in the document.
The legislation under which the NCA operated provided greater protection against self-incrimination. Under the National Crime Authority Act 1984 (Cth) (“NCA Act”), a witness could not refuse to answer a question in an examination “without reasonable excuse.”[63] It was a reasonable excuse to object to answering on the grounds of self-incrimination,[64] unless the CDPP had given a written undertaking that “any answer given … or any information, document or thing obtained as a direct or indirect consequence of the answer” would not be used in evidence in any proceedings against the witness for an offence, other than in proceedings in respect of the falsity of the evidence.[65] The CDPP was also required to state their opinion that there were special public interest grounds that required that the answers be given, and to describe the general nature of those grounds.
[63]NCA Act s 30(2).
[64]NCA Act s 30(4)(a).
[65]NCA Act s 30(5)(b).
Under the ACC Act, an examiner has the general power to regulate the conduct of the examination as they think fit.[66] However, that is subject to the specific provisions contained in s 25A and elsewhere.
[66]ACC Act s 25A(1).
Section 25A(3) provided that an examination “must be held in private and the examiner may give directions as to the persons who may be present” during part or all of the examination.
Section 25A(5) provided that “a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present”.
Sections 25A(9) to (11) appeared under a heading “confidentiality”. In general terms, s 25A(9) empowered the examiner to make directions limiting the publication of examination product. Section 25A(9) provided that the examiner must give such a direction, if the failure to do so might prejudice the safety and reputation of a person or prejudice the fair trial of “a person who has been, or may be, charged with an offence”. Section 25A(9) is a critically important section in this case, and is set out in full later in these reasons.
The CEO of the ACC could vary or revoke such a direction in writing, but could not do so if the variation or revocation ”might prejudice a person’s safety or reputation or prejudice the fair trial of a person who has been or may be charged with an offence.”[67]
[67]ACC Act ss 25A(10) and (11).
It was an offence for a person to make a publication in contravention of a direction given under s 25A(9).[68]
[68]ACC Act s 25A(14)(b).
The concept of prejudicing a fair trial also appeared in s 29A, which dealt with the disclosure of summonses and notices. Section 29A(2) provided that an examiner issuing a summons under s 28, or a notice under s 29, must or may include a notation that disclosure of information about the summons or notice is prohibited, except in certain circumstances. The examiner must include such a notation if satisfied that failure to do so “would reasonably be expected to prejudice … the fair trial of a person who has been or may be charged with an offence”,[69] and may include such a notation if satisfied that the failure to do so “might prejudice … the fair trial of a person who has been or may be charged with an offence”.[70]
[69]ACC Act s 29A(2)(a)(ii).
[70]ACC Act s 29A(2)(b)(ii).
The requirements of s 29A were not the subject of argument in this case. However, I have referred to them as they are described (along with s 25A) as important protective features of the ACC Act, in a number of the key cases.
The CDPP and ACC refer to several other provisions as being relevant to the questions of confidentiality and publication of information by the ACC, namely ss 12 and 59(7) of the ACC Act.
Section 12(1) provided that if, in carrying out an operation or investigation, the ACC obtains evidence that would be admissible in the prosecution of a State or Commonwealth offence, the CEO must assemble the evidence and give it to the relevant Attorney-General, law enforcement agency, or prosecuting person or authority.
Section 59 was headed “Furnishing of reports and information”. Relevantly for present purposes, s 59(7) permitted the CEO to give to any law enforcement agency:
any information that is in the ACC’s possession and that is relevant to the activities of that agency or body if:
(d) it appears to the CEO to be appropriate to do so; and
(e) to do so would not be contrary to a law of the Commonwealth, a State or Territory that would otherwise apply.
Section 59(7) was repealed and replaced by s 59AA, with effect from 25 June 2012.[71]
[71]As all relevant dissemination to the CDPP had already occurred before that date, it is not necessary for me to consider the CDPP’s submissions about the meaning and effect of s 59AA.
The relationship between ss 12 and 59 on the one hand, and ss 25A and 29A on the other, has been the subject of judicial consideration in the cases discussed below.
The development of the relevant legal principles
The meaning of the relevant provisions in the ACC Act, and their effect on fundamental common law principles, have been the subject of considerable development over the past decade or so. Many of the key cases were only decided after the period in which the examinations of the ACC accused took place.
There is no dispute that when a court declares a new rule of common law, or varies an existing principle or rule, the effect is a retrospective declaring of what the common law has been since time immemorial. Accordingly, all parties accept that the state of the law as declared in later cases constitutes the correct state of the law for present and past purposes.
However, in assessing whether the examiner, the ACC staff and the AFP acted in deliberate or reckless disregard of the law, in any of the ways alleged by the ACC accused, it is necessary to consider what the state of the law was, or should have been, understood to be at the relevant times. As the law in this area was developing incrementally, it is convenient to begin with a rather detailed, chronological analysis of the key cases.
Hammond
The starting point for the discussion in many of the cases is the 1982 judgment in Hammond v The Commonwealth (“Hammond”).[72] In Hammond, the High Court granted an injunction to restrain a royal commissioner from compelling Mr Hammond to give evidence that would have incriminated him in relation to pending criminal charges. Even though the commissioner had ordered that the evidence be taken in a confidential session, he had permitted investigating police officers to be present during the questioning.
[72](1982) 152 CLR 188 (Gibbs CJ, Mason, Murphy, Brennan, Deane JJ).
Gibbs CJ said:
Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow ... that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.[73]
[73]Hammond, 198 (Gibbs J).
The Chief Justice said that the continuation of an inquiry into the subject matter of the charge would amount to a contempt of court.[74]
[74]Hammond, 198 (Gibbs J), applying State of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 41 ALR 71.
Brennan J granted the injunction on an even broader basis. He described it as a principle “deep-rooted in our law and history” that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged.[75]
[75]Hammond, 202-3 (Brennan J).
Given the urgency with which the injunction application came on before the High Court, none of the judgments in Hammond contained very detailed reasoning. They have, nevertheless, been discussed in later cases.
Boulton
In the 2004 decision of A v Boulton (“Boulton”),[76] the applicant sought judicial review of an ACC examiner’s decision to require him to answer questions put to him during an examination. First, the applicant claimed that, on the true construction of the ACC Act, his common law privilege against self-incrimination still existed. Secondly, he argued that it was improper for the examiner to examine him, because it was likely that he would, in the future, be charged with offences relating to the subject matter of the examination.
[76] (2004) 204 ALR 598 (Weinberg J).
After considering in some detail the historical background to the ACC Act, and the law in relation to the privilege against self-incrimination, Weinberg J held that s 30 of the ACC Act entirely abrogated the common law privilege by necessary implication.[77] His Honour held that the ACC Act provided some compensation to witnesses who were compelled to incriminate themselves; however, that compensation was deliberately limited to use immunity, and did not extend to derivative use immunity.[78]
[77]Boulton, [100]. Carr J came to the same conclusion in Mansfield v Australian Crime Commission (2003) FCA 1059, which was decided shortly before Boulton(1).
[78] Boulton, [100].
Relying on the reasoning in Hamilton v Oades,[79] his Honour rejected the suggestion that any common law derivative use immunity survived in cases where the privilege had been abrogated by statute.[80]
[79](1989) 166 CLR 486 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
[80]Boulton, [119]-[120].
Weinberg J held that use immunity did not arise as a matter of common law, but by statute. Because its scope was a matter of statutory construction, any extension must be justified as a matter of statutory construction.[81]
[81]HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133.
In relation to the applicant’s second argument, Weinberg J said that it was plain that Hammond was directed towards situations where criminal proceedings were already on foot, and courts were seized of the proceedings.[82] There could never be any certainty that a person “about to be charged” would in fact be charged.[83] The cardinal principle underlying Hammond was that of contempt, and contempt is not ordinarily committed unless and until the curial process has been commenced.[84]
[82]Boulton, [129].
[83]Boulton, [128].
[84]Boulton, [143]-[144].
His Honour concluded that the Hammond principle was not intended to, and did not, cover cases where charges had not been laid, and the applicant was merely suspected of involvement in the commission of an offence.[85]
[85]Boulton, [129]-[132].
Weinberg J went on to say that even if he accepted that the Hammond principle should be extended to cover such cases, he was not persuaded that there was sufficient evidence that the applicant was “about to be charged”.[86]
[86]Boulton, [133].
It is important to note that Weinberg J was only considering derivative use in the context of the construction of ss 30(4) and (5). It was not necessary for him to consider the sections which are so critical in this case, namely ss 25A(3) and (9), and what effect they have on permissible derivative use.
Weinberg J’s decision was upheld on appeal to the Full Court of the Federal Court.[87]
[87]A v Boulton (2004) 136 FCR 420, [72] (Beaumont, Dowsett and Kenny JJ).
CC v ACC
In the June 2005 decision in CC v Australian Crime Commission (“CC v ACC”),[88] the applicant sought an injunction restraining the ACC from continuing his examination in relation to pending charges. In deciding to refuse the injunction, Mansfield J accepted an assurance that counsel assisting would seek orders to the following effect: that the police officer who was the informant on the charges not be permitted to attend the hearing of the examination (except on a specific topic, which was clearly unrelated to the criminal charges); and that the transcript not be made available to the informant or the prosecuting authorities.[89]
[88][2005] FCA 754 (Mansfield J).
[89]CC v ACC, [13].
ABC v Sage
In the February 2009 decision in ABC v Sage,[90] Jessup J considered a similar application, in relation to a person already charged with drug offences. The original ACC summons that was served on the applicant said that he would be required to give evidence about “the unlawful manufacture, trafficking and supply of amphetamine type substances; and conspiracy to murder.” The summons also said “You will not be examined in relation to charges currently before the courts.” After service, the summons was amended to remove any reference to drug offences.
[90](2009) 175 FCR 319 (Jessup J).
Sage, the same examiner as in the present case, excluded from the examination all persons involved in the investigation and prosecution of the drug charges. He made a s 25A(9) non-publication direction, which expressly prohibited publication of the evidence to the AFP and prosecuting authorities. In an affidavit filed in that proceeding, Sage swore that he did not intend to authorise anyone who had an involvement in the investigation or prosecution to be present during the examination, or to have access to any evidence obtained during the examination. There was also evidence that, pursuant to directions given by Sage, the ACC had placed tight administrative restrictions upon the range of persons who could have access to the transcript.
Before giving evidence, the applicant claimed self-incrimination under s 30(4) of the ACC Act, so his answers could not be admissible against him at the trial of the drug charges. At one point in his examination the applicant refused to answer a question, on the ground that the answer would reveal an element of his intended defence to the pending drug charges. Sage rejected the objection, and required him to answer the question. The examination was adjourned, to enable the applicant to seek judicial review of Sage’s decision.
On the facts of the case, Jessup J was not persuaded that the continuation of the examination would present a real risk of interference with the administration of justice. In coming to that conclusion, his Honour was heavily influenced by the steps taken by Sage to prevent examination material from coming into the hands of those involved in investigating and prosecuting the applicant in relation to the pending charges, including by the terms of the s 25A(9) non-publication direction.[91]
[91]ABC vSage, [25]-[29].
Jessup J described the facts as being quite different to those in Hammond because:
In that case, police officers involved in the investigation upon which the forthcoming prosecution was based were permitted to be present during the administrative examination … here, by contrast, not only are those police officers not present (and not permitted to be present), but [Sage] has taken the steps contemplated by the ACC Act to make it as certain as may be that those involved in the prosecution of the applicant will not come to learn of the substance of his evidence in the examination.[92]
[92]ABC vSage, [30].
In so far as Jessup J held that persons the subject of pending criminal charges could be examined by the ACC, that part of his decision must now be regarded as wrong, since the High Court’s decision in X7 v Australian Crime Commission & Anor (“X7(1)”).[93] But, what is of particular significance for present purposes are the orders made by Sage in that case, as well as his Honour’s comments about the importance of an examiner taking steps to quarantine examination material from investigators and prosecutors.[94] As will be discussed later in these reasons, Sage took a diametrically opposed approach to both the presence of, and publication to, investigating police and prosecuting authorities, when he came to examine the ACC accused the following year.
[93](2013) 248 CLR 92 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[94]In the 2004 decision in Hak v Australian Crime Commission (2004) 138 FCR 51, Merkel J had also discussed the important role played by ss 25A(9) and (12) as safeguards in ensuring the fairness of any trial.
OK(1)
In September 2009, Mansfield J published his reasons for decision in the case of OK v Australian Crime Commission (“OK(1)”).[95] On 12 May 2009, the applicant was examined about some matters relating to a special investigation, which was then on foot. An interim non-publication direction was made under s 25A(9), preventing publication other than to persons who had been present at the examination, and the applicant’s lawyers. The examination was adjourned for one week.
[95](2009) 259 ALR 507 (Mansfield J).
The following day, the applicant was arrested and charged with a drug manufacturing offence. Certain ACC officers (not necessarily the examiner) had been aware before his ACC examination that the South Australian police intended to arrest him for that drug offence. The operations manager of the Adelaide office of the ACC took steps to ensure that the police involved in the potential arrest, investigation or prosecution of the charge were excluded from the examination process. No information about the examination was made available to the South Australian police.
When the examination resumed on 19 May, the applicant objected to answering questions about matters related to the charge. He claimed that to compel him to answer would tend to interfere with the administration of justice, and amount to a contempt of court. The examiner directed him to answer, notwithstanding his objection. The examination was adjourned, to enable the applicant to apply to court.
Mansfield J ordered that the ACC, by the examiner, be restrained from asking questions directly related to matters the subject of the charge. His Honour said that the issue was not whether, by s 30, the ACC Act had abrogated the privilege against self-incrimination – it clearly had.[96] The issue was whether the applicant was entitled not to answer questions asked by the examiner, to the extent that they directly related to matters the subject of the charge, because to do so would involve a real risk that the administration of justice would be interfered with.
[96]OK(1), [18], [33].
In OK(1), the ACC argued that Hammond should be read narrowly and was distinguishable from the facts in that case; alternatively, that the ACC Act had, by necessary implication, qualified the principle established in Hammond. Mansfield J rejected the ACC’s submissions. He granted an injunction restraining the ACC from asking the applicant questions directly relating to the subject matter of the drug charge, until after the charge had been finally dealt with.
Mansfield J affirmed the importance and applicability of the Hammond principle in the following terms:
As was explained in Hammond, the public interest in the administration of justice is a central feature of our society. It is not a principle to be lightly qualified. Other provisions of the ACC Act, as noted, recognise that principle: ss 25A(9) and 29A(2). I do not consider that the obligation of a person to answer questions at an examination under s 30(2)(b), in the overall context of the ACC Act, impliedly qualifies that principle.[97]
[97]OK(1), [62].
His Honour said that the question of whether there was a real risk of interfering with the administration of justice was a question of fact in each case. He said that in Hammond, the risk was apparent from the fact that the investigating police officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided.[98]
[98]OK(1), [67].
Even though administrative steps had been taken to exclude the investigating South Australian police officers from the examination, and a non-publication direction had been made under s 25A(9), Mansfield J went on to consider the possible ways in which information from the examination may, nevertheless, be made available to prosecuting authorities. Those possible routes included a report by the CEO under s 12(1), or dissemination under s 7A.[99] His Honour also noted that there was no assurance that the current non-publication direction would continue.[100]
[99]OK(1), [69]-[70].
[100]OK(1), [73].
Mansfield J held that even if the applicant’s answers were not admissible in evidence against him, because of the use immunity provided by s 30(5), his answers may nevertheless provide information which may adversely affect his opportunity to have a fair trial in relation to the charge, in the following ways:
(a) They may disclose details of his defence, so that the prosecutor may be able to anticipate and adduce evidence which would not otherwise have been available and procured;
(b) They may disclose other avenues of investigation to assist in proving guilt, that would not otherwise have been available to the prosecution;
(c) They may disclose a source of evidence that could contradict the foreshadowed defence; or
(d) They may disclose material, or lead to the identification of material, to cross-examine the applicant, if he gave evidence.[101]
[101]OK(1), [72].
OK(2)
On 2 June 2010, Mansfield J’s decision was overturned by a majority decision of the Full Court of the Federal Court in Australian Crime Commission v OK (“OK(2)”).[102] However, at the time of the examinations of Brady and Leckenby, in April 2010, OK(1) represented the state of the law.
[102](2010) 185 FCR 258 (Spender, Emmett and Jacobson JJ).
In their joint majority reasons in OK(2), Emmett and Jacobson JJ said that obtaining evidence under a statutory power, for the purpose of assisting a party in pending litigation, does not necessarily constitute an interference with the procedures of the courts. To constitute contempt, the party must exercise the power in a way that actually interferes with the course of justice.[103] Furthermore, to succeed in obtaining an injunction on the ground that the further examination of a person charged with an offence would constitute contempt of court, it is necessary to establish that there is a real risk, as opposed to a remote possibility, that justice would be interfered with, if the examination continued with questions about the alleged offence.[104]
[103]OK(2), [103].
[104]OK(2), [105].
The majority regarded Hammond as distinguishable, because of the presence in the ACC Act of s 25A. They said that, under the ACC Act, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness. Properly construed, the ACC Act permits an examination to continue on a subject matter directly related to a pending charge, so long as the protective prohibitions contemplated by ss 25A(3) and (9) have been put in place.[105] The terms of s 25A expressly contemplate that the examiner must give a non-publication direction, if the failure to do so might prejudice the fair trial of a person who has been, or may be, charged with an offence.[106]
[105]OK(2), [107].
[106]OK(2), [110].
As far as other possible dissemination of examination material was concerned, the majority said that a direction given under s 25A(9) overrides the statutory obligations imposed by ss 12 or 59 on the ACC, the CEO or the ACC board, to assemble and give evidence, or disseminate and furnish information and reports. Those persons would be able to disseminate only if they were satisfied, on sufficient evidence, that appropriate safeguards were in place to ensure that the relevant investigating and prosecuting teams not be given access to the information.[107]
[107]OK(2), [111].
Spender J dissented, holding that Mansfield J was right to restrain the continued examination of the witness, in order to maintain the integrity of the administration of justice. His Honour held that just because steps can be taken to ensure that a prosecutor or an investigator of a criminal offence does not become aware of the answers given by the witness in the examination, that does not mean that there is no interference with the administration of justice. Applying the Hammond principle, it is the inquisition by the executive of a witness, who is subject to compulsion to answer questions, which constitutes the interference with the administration of justice.[108] For Spender J, it did not matter whether the information provided by the person could be quarantined from investigating and prosecuting authorities.[109]
[108]OK(2), [7]-[11].
[109]OK(2), [13].
In so far as the majority held that the ACC Act permits the examination of a person in relation to the subject matter of a pending charge, that decision must be regarded as wrong since the decision in X7(1). However, OK(2) was the most current appellate authority at the time of the examinations of Wong and Hutchinson. Importantly for this case, all of the judges in OK(1) and OK(2) spoke of the fundamental role played by ss 25A(3) and (9), in protecting a witness from possible prejudice to a fair trial. The majority had also said that s 25A(9) overrides the statutory reporting obligations imposed by ss 12 or 59.
The law continued to develop after the last examinations of the ACC accused in November 2010. Dissemination of examination material to the AFP and CDPP took place at various dates up until late 2012.
CB
In December 2011, in R v CB, MP v R (“CB”),[110] the New South Wales Court of Criminal Appeal considered whether to stay criminal proceedings against persons who were examined by the ACC, after they had been charged. As McClellan CJ at CL (with whom Buddin and Johnson JJ agreed) observed, the debate in previous authorities concerning the ACC Act had concerned whether or not the examination should be restrained, not whether the criminal proceedings should be permanently stayed.[111]
[110](2011) 291 FLR 113 (McClellan CJ at CL, Buddin and Johnson JJ).
[111]CB, [118].
Following the majority decision in OK(2), the court held that there was nothing wrong with an accused person being examined in relation to matters relevant to pending charges, “provided the information was effectively protected as the [ACC] acknowledged it should be”.[112] Even if the appellant was asked questions which would require him to disclose his defence, that would not justify a stay “unless it could be shown that either the relevant information has been, or there was a real risk that it would be, communicated to the prosecution.”[113]
[112]CB, [128].
[113]CB, [128].
In CB, the appellant was examined in September 2009 about matters relevant to pending criminal charges. In the summons, the examiner informed the appellant that persons involved in the investigation of the criminal charges would not be permitted to attend, and a non-publication direction would be made to prevent information being published to investigators and the CDPP. Unlike in the present case, such a non-publication order was duly made.
However, Mohammad Hussein, an AFP officer who was seconded to the ACC, was present during the appellant’s examination and took notes. That was not of concern to the appeal court, for two reasons. First, (unlike in the present case) Hussein was not an investigator who was involved in the prosecution of the charges,[114] and there was no professional reason for him to breach his secrecy obligations. Secondly, without having seen a transcript of the examination, the court could not conclude that anything was said in the examination that would be of assistance to the prosecution; accordingly, it could not conclude that the appellant could not receive a fair trial.[115]
[114]Hussein had a limited role in the surveillance of other possible co-offenders, and McClellan CJ at CL described his role as “peripheral” (CB, [130]-[131]). Unlike in the present case, there was also no suggestion that the ACC was not conducting an actual investigation at the time of the examinations.
[115]CB, [131].
Given those findings of fact, it is not surprising that the Court of Criminal Appeal concluded that there was no justification for a permanent stay in that case.[116]
[116]On 8 November 2013, the High Court refused an application to reopen an application for special leave.
The court in CB also reaffirmed the principles enunciated by the majority in OK(2), about the duties and rights of disclosure in ss 12(1) and 59(7) being subservient to the protective provisions in ss 25A(9) and 29A(2).[117] Those two decisions represented the state of the law, in terms of the relationship between those provisions, during the period when most of the dissemination to the AFP and CDPP in fact occurred.
[117]CB, [109].
Seller(1)
The August 2012 decision in R v Seller, R v McCarthy (“Seller(1)”),[118] is of some importance in this case, particularly in relation to the issues of dissemination and use of examination material by the CDPP.
[118](2012) 232 A Crim R 146 (Garling J).
In 2004, the ACC and Australian Taxation Office began “Operation Wickenby”, a joint special investigation into suspected tax fraud and money laundering. As part of Operation Wickenby, in 2005, the ACC began an investigation into the activities of Seller and McCarthy, which lasted for some years. The accused were compulsorily examined on a number of occasions by an ACC examiner, before being charged, but at a time when charges were clearly in contemplation. The examinations related to factual matters that were central to the charges and the accused’s defences.
There is, at present, no evidentiary basis for me to conclude that there has been a loss of documents and/or memory, sufficient to justify either a permanent stay, or the dismissal, of the charges.
Prejudicial pre-trial publicity
Since May 2009, when The Age published its first article about foreign bribery allegations involving Securency, there has been sporadic media coverage about the alleged offences. The accused allege that the coverage has been so substantial and so prejudicial that it cannot be cured by any jury direction. Accordingly, they say that they cannot have a fair trial, and the charges should be permanently stayed or dismissed.
General principles
In Dupas v The Queen (“Dupas”)[366], the High Court considered when circumstances of pre-trial publicity might warrant a temporary or permanent stay of proceedings. The court held that there is no definitive category of extreme cases in which a permanent stay would be justified. The question is whether there is nothing the trial judge can do that can relieve against the unfair consequences of pre-trial publicity. The court noted the following important considerations:
(a) It is vital to the criminal justice system that jurors, when properly directed, can decide cases according to law, by reference only to admissible evidence;[367] and
(b) In addition to fairness to the accused, there is also a need to take into account the substantial public interest and right of the community in bringing those charged with criminal offences to trial.[368]
[366](2010) 241 CLR 237.
[367]Dupas, [29].
[368]Dupas, [37].
Media coverage
Since May 2009, media outlets, and in particular The Age newspaper, have intermittently published a series of long and short articles on the Operation Rune investigation.[369] However, since the end of 2013, there has been very limited reporting about the alleged foreign bribery in Malaysia, Nepal and Indonesia. Since the hearing of these applications, there has also been some reporting of the trial and conviction in the United Kingdom of a former Securency employee, Peter Chapman, in relation to the payment of bribes in Nigeria.
[369]Between May 2009 and May 2014, The Age published approximately 144 articles in print and online relating to Operation Rune (Affidavit of Howard Rapke, [18]).
The majority of the coverage connected to these proceedings has related to RBA, Securency and NPA, rather than to the individual accused. The matters generally reported on include:
(a) The investigation of the RBA, NPA and Securency, and their relationship;
(b) Speculation about payment of bribes overseas and about illegitimate accounting practices;
(c) The use of foreign agents and concerns about excessive commission payments;
(d) Reference to the accused in relation to use of agents in non-corrupt practices;
(e) Assertions about payments made to political figures in a number of countries;
(f) General and specific allegations of corruption;
(g) The role of Austrade; and
(h) Matters arising out of the committal hearing, including scrutiny of police methods.
The majority of coverage has not been sensational, and has consisted of analysis or commentary of the business practices of the companies. Nor has the coverage been emotional or prejudicial, in the same way as the coverage in Dupas, or the earlier High Court decision in The Queen vGlennon (“Glennon”).[370] Brennan J noted in Glennon that “pre-trial publicity prejudicial to an accused is stimulated by the notoriety of the accused and the heinousness of the crime”.[371] These are not crimes that conjure up visceral images that cannot be expunged from a juror’s mind (as compared to pederasty, rape or murder, which were the subjects in Glennon and Dupas).
[370](1992) 173 CLR 592, (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[371]Glennon, 613.
In addition, the evidence a jury would be asked to consider would involve a body of material that is not easily relatable to the reported newspaper articles, the detail of which would unlikely remain in the memories of potential jurors to any great extent.
Breaches of non-publication orders
A number of relevant non-publication or suppression orders have been made.
On 17 August 2011, the Magistrates’ Court made non-publication orders, prohibiting publication of any material containing any reference to Securency or NPA pleading guilty or intending to plead guilty, until all current proceedings against the accused and others had been heard and determined in the Magistrates’ Court.
On 16 November 2011, the County Court made similar orders, prohibiting publication of any material containing any reference to Securency or NPA making pecuniary penalty payments, until proceedings against the accused and others had been heard and determined in the Magistrates’ Court.
On 5 December 2011, I made orders prohibiting publication of any material containing any reference to Securency or NPA pleading guilty, or intending to plead guilty. The orders were subsequently amended on several occasions.
On 17 July 2012, I revoked my previous orders and made fresh non-publication orders (until the completion of the last trial of any individual accused or further order) prohibiting publication of material containing references to Securency and NPA having pleaded guilty, or the fact or contents of their plea hearings and sentences.
There have been some breaches of those orders, but they have not been numerous or sensational. Brief reports about the companies having been sentenced and/or ordered to pay pecuniary penalties, were published as follows:
(a) On 24 November 2011, on ABC Radio National;
(b) On 14 May 2012, The Age journalists, Baker and McKenzie gave an interview entitled “The Reserve Bank Scandals: the Story behind the Story”, which was published on the Melbourne Press Club website;
(c) On 27 July 2011, The Age published a Baker and McKenzie article headed “Bribes: Firms to Plead Guilty”;
(d) In 2012, in an article entitled “Corporate liability for the bribery of foreign public officials: Reassessing Australia’s legislative regime in light of the banknote scandal and UK Bribery Act 2010”, which was published by LexisNexis in the Australian Journal of Corporate Law;
(e) On 9 October 2012, by Brian Toohey in the Australian Financial Review;
(f) On 30 July 2013, by Bloomberg LP on the Bloomberg Terminal and on two websites ( and
(g) On 13 November 2014, in an interview on Sky News between David Chaikin and Peter Switzer; and
(h) In the August 2015 edition of the Journal of Governance Institute of Australia.
A number of these breaches occurred because the authors relied upon the Federal Parliamentary website, which published a report that mentions that the companies pleaded guilty. [372]
[372]
I do not regard these breaches as serious, in the sense that they would contribute significantly to the unfairness of any trial of the accused. In each of the cases which was brought to the court’s attention, the publisher removed any offending article from their website, once made aware of the existence of the court’s orders. In addition, such breaches have been few and far between over a number of years, and are unlikely to have become fixtures of the public consciousness.
I am far from persuaded that any potential prejudice caused by publications to date could not be prevented or cured by suitable jury empanelment processes, and/or appropriate jury directions.
Personal factors relevant to the accused
The accused argue that the following matters are relevant to both the alternative stay and dismissal applications.
No foreign bribery training
The accused say that there is no evidence to suggest that NPA, Securency or the RBA informed them of the introduction of the foreign bribery provisions at any time prior to 2004. Given that the CDPP did not refer to any evidence to the contrary, I assume for present purposes that the accused received no such training.
Ignorance of the law does not provide a defence to any of these offences. However, if any of the accused were to be convicted, any failure by their employer to provide them with adequate training in relation to their legal obligations may well be a relevant sentencing consideration.
In any event, any failure to receive proper training would not justify the permanent stay or dismissal of these charges, either on its own or in conjunction with the other matters relied upon by the accused.
No personal benefit
The CDPP does not suggest that the accused obtained any personal benefit from the companies’ entry into the foreign banknote contracts. Whatever the accused did in relation to those contracts was done for the benefit of their employer.
It is not an element of either the conspiracy or false accounting charges that the accused must have received a personal benefit, so this fact does not provide them with a defence. Once again, this is a matter that would be very relevant to any sentencing decision.
I accept that the apparent lack of personal betterment is relevant to the gravity of the alleged offending, and that it may be taken into account in assessing whether it is in the interests of justice for the prosecutions to continue.
Other personal considerations
The accused also rely upon various matters concerning their age, health, good character, and other personal circumstances, including the amount of time they have already spent facing these charges. Most of those matters have already been considered in the context of delay and loss of memory. I am not persuaded that there is anything left about the accused’s personal circumstances that would add much weight to the other matters I have considered.
The weakness of the cases against Brady and Hutchinson
If a case is foredoomed to fail, then it is brought for an improper purpose and may be permanently stayed as an abuse of process. However, Brady and Hutchinson concede that the case against them is not foredoomed to fail.
Instead, they say that:
(a) The conspiracy charges again them are weak; and
(b) That is relevant in considering whether the interests of justice require dismissal of the conspiracy charges against them.
On the basis of the evidence that I have seen, the conspiracy cases against Brady and Hutchinson certainly do appear to be weaker than the cases against the other alleged co-conspirators. Indeed, Bonnici said in evidence during the ACC stay application that he was surprised that Hutchinson had been charged at all. I also note that neither Brady nor Hutchinson was committed for conspiracy in relation to Malaysia or Nepal; they are only before the court on those charges because the CDPP chose to directly indict them. The prosecution case is largely circumstantial, and based on documents that may be open to more than one interpretation. That said, the assessment of the strength of the prosecution case is, quintessentially, a jury task, to be undertaken only after the jurors have heard all the evidence (assuming that the trial judge determines at the close of evidence that there is a case to answer).
Further, given the possibility that additional evidence may be obtained prior to any trial, it is neither necessary nor desirable for me to embark on a detailed evaluation of the evidence against Brady and Hutchinson.
Finally, in so far as some of their written submissions (under the heading “Considerations particular to Brady and Hutchinson”) raise Hoar and Gerakiteys points, I have already considered them when considering their criticisms of the conspiracy charges.
Conclusions on the other applications
For the reasons set out above, the interests of justice do not require the dismissal of the charges against the accused under s 11.5(6) of the Code. The accused’s alternative application for a permanent stay of the proceedings must also fail.
The conspiracy charges do not suffer from the defects alleged by the accused. The conspiracies charged are not reckless or conditional. Nor are they duplicitous.
There are no alternative substantive offences available to the CDPP in relation to the Malaysian, Nepalese or Indonesian conspiracies. In any event, the current conspiracy charges are the only sufficient and effective charges available to reflect the alleged criminality that took place.
For those reasons, I am not satisfied that the CDPP’s decision to bring conspiracy charges against the accused is so inherently unfair, or such an abuse of process, as to warrant the relief sought.
Further particulars will need to be provided by the CDPP, prior to any trial of the accused. However, the lack of particularisation of the charges at this stage of the proceedings does not warrant dismissal in the interests of justice or a permanent stay.
It is also premature to deal with any issues that might arise as a result of the application of the co-conspirators’ rule. I am satisfied that, at this stage, application of the co-conspirators’ rule does not give rise to any requisite unfairness.
The dismissal power in s 11.5(6) is not limited to circumstances where sufficient and effective substantive offences are available. However, in light of my conclusions that no such substantive offences are available, and the charges are not duplicitous, the additional matters raised by the accused that are wholly unrelated to the charge of conspiracy cannot of themselves justify dismissal under s 11.5(6).
Those additional matters are also insufficient to justify a permanent stay of the proceedings, either individually or cumulatively.
Although I have granted the ACC accused’s application for a permanent stay, I am unable to grant the same relief to Curtis and Boillot on the basis of the accused’s submissions in the alternative stay application.
I am satisfied that to the extent that investigators have acted improperly in relation to witnesses, failed to obtain or include exculpatory evidence or evidence from Malaysia and Nepal, and failed to properly investigate company boards, such failures have either been remedied by the committal process, or are capable of being remedied prior to or at trial. Similarly, any failure by the AFP to properly analyse and examine the documentary and electronic evidence in their possession can be remedied prior to trial.
Apart from what happened with the ACC examinations, I am not satisfied that anything that has happened in relation to the AFP investigation could be characterised as police malpractice.
While I accept that there has been a delay between the alleged offending and any future trial of the accused, the delay and the resulting loss of memory and evidence does not cause such prejudice or unfairness against the accused as to justify a stay of the proceedings. The pre-trial publicity to date and the personal factors relevant to the accused are also insufficient to warrant a stay of proceedings.
Ultimately, I am not satisfied that the matters raised by the accused in the alternative stay application would (individually or collectively) bring the administration of justice into disrepute; nor am I satisfied that it would be unjust or oppressive for the accused to face trial in light of these matters.
For those reasons, the alternative stay and dismissal applications will be dismissed.
SCHEDULE 1 - PARTIES
| Party | Proceeding no. | Proceeding issued | Charge |
| Christian Boillot | S CR 2014 0047 | 29 May 2014 | Foreign bribery – Malaysia |
| Barry Thomas Brady | S CR 2013 0173 | 13 December 2013 | False accounting – Nepal Foreign bribery – Nepal |
| S CR 2014 0058 | 29 May 2014 | Foreign bribery – Malaysia | |
| Myles Andrew Curtis | S CR 2014 0048 | 29 May 2014 | Foreign bribery – Indonesia Foreign bribery – Malaysia |
| S CR 2014 0079 | 26 June 2014 | False accounting – Malaysia | |
| Peter Sinclair Hutchinson | S CR 2013 0174 | 13 December 2013 | False accounting – Nepal Foreign bribery – Nepal |
| John Leckenby | S CR 2013 0175 | 13 December 2013 | False accounting – Nepal Foreign bribery – Nepal |
| S CR 2014 0049 | 29 May 2014 | Foreign bribery – Malaysia | |
| Steven Kim Chow Wong | S CR 2013 0215 | 13 December 2013 | Foreign bribery – Nepal |
SCHEDULE 2
CASES
| Full Citation | Abbreviation |
| A v Boulton and Another (2004) 204 ALR 598 | Boulton |
| A v Boulton and Others (2004) 136 FCR 420 | |
| AB Pty Ltd v Australian Crime Commission (2009) 175 FCR 296 | |
| AB v National Crime Authority (1998) 85 FCR 538 | AB v NCA |
| ABC v Sage (2009) 175 FCR 319 | ABC v Sage |
| Agius v The Queen (2013) 248 CLR 601 | Agius |
| Ahern v The Queen (1988) 165 CLR 87 | Ahern |
| Attorney General’s Reference (No 1 of 1990) [1992] 3 All ER 169 | |
| Audsley v The Queen [2013] VSCA 41 | Audsley |
| Australian Crime Commission v NTD8 (2009) 177 FCR 263 | |
| Australian Crime Commission v OK (2010) 185 FCR 258 | OK(2) |
| B v Australian Crime Commission [2011] FCA 1046 | |
| Barnes v Boulton (2004) 139 FCR 356 | |
| Bartlett v The Queen (No 6) [2013] WASC 304 | Bartlett |
| Barton v The Queen (1980) 147 CLR 75 | |
| Boyce v Nunn (1997) 138 FLR 475 | |
| CC v Australian Crime Commission [2005] FCA 754 | CC v ACC |
| Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378 | Zhao |
| D v Australian Crime Commission and Others (2006) 152 FCR 497 | D v ACC |
| Dietrich v R (1992) 177 CLR 292 | |
| Director of Public Prosecutions (Cth) v Galloway & Others [2014] VSCA 272 | Galloway |
| Director of Public Prosecutions (SA) v B (1998) 194 CLR 566 | |
| Director of Public Prosecutions v Doot [1973] AC 807 | |
| Director of Public Prosecutions v Kent and Sussex Contractors Ltd [1944] 1 KB 146 | |
| Dupas v The Queen (2010) 241 CLR 237 | Dupas |
| Egglishaw v Australian Crime Commission (2006) 230 ALR 254 | |
| Gerakiteys v The Queen (1984) 153 CLR 317 | Gerakiteys |
| GG v Australian Crime Commission (2010) 182 FCR 513 | GG(2) |
| GG v Australian Crime Commission [2009] FCA 759 | GG(1) |
| Hak v Australian Crime Commission (2004) 138 FCR 51 | |
| Hallett v The Queen (1995) 3 NTJ 1422 | |
| Hamilton v Oades (1989) 166 CLR 486 | |
| Hammond v The Commonwealth (1982) 152 CLR 188 | Hammond |
| Handlen v The Queen (2011) 245 CLR 282 | Handlen |
| Hill v Woollahra Municipal Council (2003) 127 LGERA 7 | Hill |
| HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 | |
| Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 | |
| Jago v The District Court of New South Wales & Others (1989) 168 CLR 23 | Jago |
| Lee v New South Wales Crime Commission (2013) 251 CLR 196 | Lee(1) |
| Lee v R (2014) 253 CLR 455 | Lee(2) |
| Lee v The Queen (2013) 232 A Crim R 337 | |
| LHRC v Deputy Commissioner of Taxation (No 3) [2015] FCA 52 | LHRC |
| Malubel Pty Ltd v Elder (1998) 88 FCR 242 | |
| Mansfield v Australian Crime Commission (2003) FCA 1059 | |
| Maxwell v R (1996) 184 CLR 501 | |
| McKenzie & Baker v Magistrates’ Court of Victoria & Leckenby (2013) 39 VR 311 | McKenzie |
| McKenzie & Anor v Magistrates’ Court of Victoria & Anor [2013] VSC 2 | |
| Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 | |
| Moti v R (2011) 245 CLR 456 | Moti |
| National Crime Authority v A1 (1997) 75 FCR 274 | NCA v A1 |
| OK v Australian Crime Commission (2009) 259 ALR 507 | OK(1) |
| Ousley v The Queen (1997) 192 CLR 69 | |
| P v Board of Australian Crime Commission and Another (2006) 151 FCR 114 | P v ACC |
| Penney v R (1998) 155 ALR 505 | Penney |
| Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 | Plaintiff S157 |
| Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 | |
| QAAB v Australian Crime Commission (2014) 227 FCR 293 | QAAB |
| R v B (2008) 76 NSWLR 533 | |
| R v Baladjam (No 4 ) (2008) 270 ALR 106 | Baladjam |
| R v C; MP v R (2011) 291 FLR 113 | CB |
| R v Christanto [2013] VSC 521R | Christanto sentence |
| R v Dowding and Grollo [2000] VSC 439 | Dowding |
| R v El-Kotob (2002) 4 VR 546 | El-Kotob |
| R v Ellery [2012] VSC 349 | Ellery sentence |
| R v Hoar (1981) 148 CLR 32 | Hoar |
| R v Masters (1992) 26 NSWLR 450 | Masters |
| R v McDonnell [1965] 1 QB 233 | |
| R v Note Printing Australia Limited & Anor [2012] VSC 302R | companies sentence |
| R v Saik [2007] 1 AC 18 | |
| R v Seller; R v McCarthy (2012) 232 A Crim R 146 | Seller(1) |
| R v Seller and Another (2013) 273 FLR 155 | Seller(2) |
| R v Seller; R v McCarthy (2015) 89 NSWLR 155 | Seller(3) |
| R v Shepherd (1988) 94 FLR 55 | Shepherd |
| R v Won & Singh [2012] SADC 117 | |
| R v X [2014] NSWCCA 168 | R v X |
| Re. Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 | |
| Ridgeway v R (1995) 184 CLR 19 | |
| Rogers v The Queen (1994) 181 CLR 251 | |
| Salmat Document Management Solutions Pty Ltd & Ors v R [2006] WASC 65 | |
| Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467 | |
| SS v Australian Crime Commission and Another (2009) 224 FCR 439 | SS v ACC |
| State of Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 41 ALR 71 | |
| The Queen v Apostilides (1984) 154 CLR 563 | Apostilides |
| The Queen v Edwards (2009) 255 ALR 399 | Edwards |
| The Queen v FJL [2014] VSCA 57 | FJL |
| The Queen v Glennon (1992) 173 CLR 592 | Glennon |
| The Queen v LK; The Queen v RK (2010) 241 CLR 177 | LK |
| Thompson v Randwick Corporation (1950) 81 CLR 87 | |
| Tripodi v R (1961) 104 CLR 1 | Tripodi |
| Tsang v Director of Public Prosecutions (Cth) (2011) 255 FLR 41 | Tsang |
| X v Australian Crime Commission (2004) 139 FCR 413 | X v ACC |
| X7 v Australian Crime Commission (2013) 248 CLR 92 | X7(1) |
| X7 v R (2014) 292 FLR 57 | X7(2) |
| XCIV v Australian Crime Commission (2015) 234 FCR 274 | XCIV |
| Walton v Gardiner (1993) 177 CLR 378 | |
| Williams v Keelty (2001) 111 FCR 175 | |
| Williams & Ors v Spautz (1992) 174 CLR 509 | |
| Z v Australian Crime Commission (2010) 188 FCR 85 | Z v ACC |
LEGISLATION AND SUPPORTING MATERIALS
| Full Citation | Abbreviation |
| Acts Interpretation Act 1901 (Cth) | the interpretation Act |
| Australian Crime Commission Act 2002 (Cth) | the ACC Act |
| Australian Crime Commission Establishment Bill 2002 (Cth) | |
| Criminal Code Act 1995 (Cth) | the Code |
| Criminal Code Amendment (Bribery of Foreign Officials) Act 1999 (Cth) | |
| Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 (Cth) | |
| Criminal Code Bill 1994 (Cth) | |
| Crimes Act 1914 (Cth) | the Crimes Act |
| Crimes Act 1958 (Vic) | |
| Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 (Cth) | |
| Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth) | |
| Director of Public Prosecutions Act 1983 (Cth) | |
| Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) | |
| National Crime Authority Act 1984 (Cth) | the NCA Act |
| New South Wales Crime Commission Act 1985 (NSW) | the NSWCC Act |
| Mutual Assistance in Criminal Matters (Malaysia) Regulations 2006 (Cth) | |
| Proceeds of Crime Act 1987 (Cth) |
INSTRUMENTS AND OTHER DOCUMENTS
| Full Citation | Abbreviation |
| Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 | the financial crimes determination |
| Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) Amendment No.1 of 2009 | the financial crimes determination amendment |
| Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering) 2010 | the money laundering determination |
| Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) 2013 | the HRCT determination |
| Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003 | |
| Treaty between the Government of Australia and Government of Malaysia on Mutual Assistance in Criminal Matters |
---
· Category A persons are “persons more central to the allegation, being the managers of agents and senior executives of Securency” and “NPA senior executives”. Category A persons are persons believed to “have direct knowledge of payments from the agents to foreign public officials or have intimate knowledge of the conduct of individual executives in Securency, and their dealings with agents.”
· Category B persons are “persons identified as being on the lower level or periphery of the allegation.” Category B persons are “are not believed to be directly involved in the commission of any offences and their reluctance to assist the investigation is probably due to their loyalty to the Senior Executives of the company or their not wanting to be seen by other Securency employees as having assisted the investigation.”
· Category C persons were persons who “were only expected to have broad knowledge of business operations or were not suspected to have direct knowledge of any criminal activity.”
·
See, eg, submissions received the Senate Economics References Committee in relation to the Senate Enquiry into Foreign Bribery, available at: Bribery/Submissions.
12
24
0