Commonwealth of Australia v Helicopter Resources Pty Ltd & Ors

[2020] HCATrans 5

[2020] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S217 of 2019

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

HELICOPTER RESOURCES PTY LTD ACN 006 485 105

First Respondent

MARY MACDONALD

Second Respondent

CORONER’S COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Third Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 FEBRUARY 2020, AT 2.15 PM

(Continued from 10/10/19)

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC:   May it please the Court, I appear again with MR T.J. BRENNAN and MS K.I.H. LINDEMAN, for the first respondent.  (instructed by Norton White)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   Your Honours, I appear again with MR T.M. BEGBIE and MS J.D. WATSON, for the appellant.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Gleeson.  Mr Gleeson, are counsel able to tell us how much of the afternoon you are likely to require?

MR GLEESON:   I think our request is the whole.  I asked for 45 minutes last time.  I would wish that time, plus I wish to respond to the written submissions we have received on the notice of contention, either now or after you have heard the notice of contention.  So, that would take me ‑ ‑ ‑

KIEFEL CJ:   But, you have discussed time and I take it that you are comfortable you will finish within the afternoon.

MR GLEESON:   We are close to agreement so we will just have to do that, your Honour.

KIEFEL CJ:   That was my next question.  Are you proceeding with the notice of contention given, as I understand it, that the trial has been concluded?

MR GLEESON:   Your Honour, we have respectfully asked the Court to consider revocation of special leave.  The trial has been concluded.  The judgment is there.  The Commonwealth was convicted.  We were acquitted.  The order which was once hypothetical and becoming more hypothetical – the case, which was hypothetical has now reached, perhaps, the zenith of hypotheticality.

So, what we are here to do is, if the Court is continuing with the appeal, to seek to play the role we played and, from the written submissions you have received, it seems the arguments on notice on contention overlap many of the arguments on the appeal.  Many of them you heard last time so it is very hard to separate it.  So, we are in your Honour’s hands but if ‑ ‑ ‑

KIEFEL CJ:   Well, I think at this point, as you say, it is too difficult to separate the various issues, but the parties will certainly have to address the prospect that the matter may well be regarded as hypothetical, if not in the nature of approaching an advisory opinion and that ‑ ‑ ‑

MR GLEESON:   Well, our primary submission, your Honour, is the whole matter is in that character and your Honours, given what has occurred, should simply revoke special leave.

KIEFEL CJ:   Well, we will hear argument overall, and reserve on all of those questions.

MR GLEESON:   Thank you, your Honours.  So, if I could then just commence on ground 1, which was paragraphs 11 to 13 of our outline, and observe that ground 1 of the appeal raises a question about the meaning of the Evidence Act, and also a question about its effect.  The meaning question is a pure question of statutory construction and our submission on that, if your Honours have the volume 1 of the authorities, there are three steps to the logic of the Evidence Act, commencing at page 63.

BELL J:   For those of us working off a copy of the Act, are you taking us to the Act?

MR GLEESON:   Yes, your Honour, section 59.

BELL J:   Right.

MR GLEESON:   And I will interpolate this to the facts of our case.  Under section 59:

Evidence of a previous representation made by a person –

Captain Lomas, a previous representation being defined at page 195 as an out‑of‑court statement:

is not admissible to prove –

the asserted fact.  That is step one.  Step two, under section 81, on page 81:

The hearsay rule . . . [does] not apply to evidence of an admission.

The critical step in the argument is the definition of admission in the dictionary, which is page 188, or the second page of the dictionary, is:

a previous representation that is‑

(a)made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding) ‑

Pausing there, admissions within the logic of the Evidence Act can only be made by parties.  The final step in the logic is to go to section 87 on page 85 and it tells us that:

For the purpose of deciding whether a previous representation –

that is, out‑of‑court statement made by Captain Lomas, hypothetically, to the coroner:

is also taken to be an admission by a party –

Helicopter Resources, then (a), (b) and (c) apply.  So if section 87 applies, what the Evidence Act has done is for its own purposes within a criminal trial, said the statement which was made to the coroner as the oral evidence of Captain Lomas is given an additional effect of being an admission by Helicopter Resources.  Now, that construction of the Evidence Act your Honours will see is supported by sections 85 and 86 which are protective provisions. 

EDELMAN J:  Well, the key point is it is given that effect even if made without authority.

MR GLEESON:   Yes, and that is point 12 of our outline.  That is what the change is to the common law ‑ that a common law, as was said last time, we could de‑authorise authority and therefore prevent it being our admission.  Under the statute we can no longer do that by reason of 87(1)(b) unless, I suppose we took the drastic step of dismissing Captain Lomas or giving him other duties, and that really just shows the compulsion that would be involved through the work of 87(1)(b).

So the change to the common law is a singular change.  It is the one I have just discussed with your Honour Justice Edelman.  What that means is that the underlying logic of both the common law principles of evidence and the Evidence Act are exactly the same.  Admissions are made by parties and no other persons but what can happen is that they can be either direct or they can be vicarious and this is in the category of a vicarious admission.  It is made by us through him. 

Your Honours, I was going to indicate under 85 and 86 – they are the special provisions reflecting in part the common law but in part you will see from the note responding to a decision of this Court in Kelly, in criminal cases protecting a defendant against admissions – see in particular subsection (2) of section 85 and subsection (2) of section 86.

Those protective provisions work, taking into account section 87.  So, in other words, if Captain Lomas had gone to an investigating official and made answers on the charge adverse to our interest, then that would be treated within 85(1) as an admission by Helicopter Resources because of section 87, but we would have the protections of subsection (2).  And likewise under section 86(2), when it comes to authenticating the document, it would be Captain Lomas who acknowledges it is true and that acknowledgment would be our acknowledgment as the defendant.  So my point is that section 87 operates to work out the whole of this part of the law.

Now, your Honours, that is the end of paragraphs 11 and 12 of the outline.  What is the effect of that?  If that argument is accepted, our first line of defence is that the Full Federal Court was correct in paragraphs 184 to 185 to find that the companion rule was attracted.  The compulsion, which was exercised hypothetically over Captain Lomas in the criminal proceedings, produces answers which are admissions by us in the criminal proceedings we are being compelled to assist in the discharge of the prosecution’s onus of proof.

If that argument is correct your Honours would move straight to ground 2 which is the question of whether corporations have the protections at all in this area.  Can I pause to observe that our second line of defence would operate irrespectively of how you construe the Evidence Act, and if I could ask your Honours to look at our outline at paragraph 13.  This is still an argument about section 87(1)(b).

The fundamental alteration in the criminal trial tested on a with and without basis, is that without section 87(1)(b), the prosecution could not tender the Lomas transcript as an admission by us for the reasons that I have given, so what could they do if they wished to get his compelled testimony.  They would be limited to a subpoena for him to attend as their witness, whom they would ask non‑leading questions in‑chief, who they could not cross‑examine ‑ ‑ ‑ 

NETTLE J:   Well, they could if you were unfavourable. 

MR GLEESON:   Only if unfavourable.  And they would otherwise expose him to cross‑examination by us, who knew the substance of his defence, and unless he had spoken to them voluntarily, they would be calling him cold.  So that is how the criminal trial would have run without 87(1)(b).  With 87(1)(b), it runs in the manner we have indicated in paragraph 13 and that confers two critical advantages on the prosecution.  The first is they avoid the need to call him as a witness.  They simply tender the transcript as our admission.

The second, which is more fundamental, is that when his answers go in under section 81 they go in with the exact same status in the trial as an answer to an interrogatory by us.  And Nutricia establishes that interrogatories offend the accusatorial system of justice, whether the accused is a natural person or corporation, and they require the clear statement rule before they can be allowed.  So the practical reality effect of the material going in is the prosecution obtains the advantage which it is denied in the form of interrogatories.  That, we submit, is a fundamental alteration.

The second aspect of the fundamental alteration is the prejudice to us in our defence.  I will simply point to paragraph 13 where we have set that out and ask your Honours to recall our written submissions there referenced which set out in some detail how that would prejudice our defence.

Now, if you Honours accepted either or both of the two arguments I have just put, there is a fundamental alteration to the accusatorial system.  The first focuses on the companion rule.  The second, more generally, focuses on the alteration I have just mentioned.  Either of those arguments would then lead to the dismissal of ground 1 of the appeal, and the Court would move to ground 2. 

EDELMAN J:  If the issue were approached as one involving, say, a natural person rather than a corporation, so if, for example, Helicopter Resources were a trading name for an individual who had employed Captain Lomas, these questions would be asked and answered as questions concerning a privilege against self‑incrimination, would they not?  Would one ever get to the companion principle?

MR GLEESON:   My answer would be, it could be approached through either route, your Honour, because if it is a natural person accused and its chief agent is being examined in this way and these admissions are being created, the line of your Honours’ questions is they will go in as admissions by the natural person accused and so, has the accused been compelled to incriminate himself or herself.  So, it could be treated as the privilege.

But, in terms of the accusatorial system which we do not step back from, given the learning of the Court in X7, Lee (No 1), Lee (No 2), Strickland, one would approach it by saying, within the criminal trial, the accused cannot be compelled to say anything on the charge – whether it is adverse or whether it is a positive defence – absent the clear statement rule.  So, in either case, we would say, you would get to our proposition.

BELL J:   The submission in the context of a deemed admission under section 87(1)(b) does face the hurdle when you talk of the companion rule, that the accused is the corporation.  The circumstance that provision is made for an admission to be deemed to be that of the corporation is not to conflate the witness with the corporation, and to the extent there is unfairness, that is a matter that section 90 addresses.

MR GLEESON:   Your Honour, my answer would be that is why I have identified this afternoon two lines of defence.  The first line is simply on the companion rule, and that argument is, as a matter of practical reality when one sees what happens – the compulsion over him – his compulsion over us.  That is the first line of defence.

BELL J:   Your first line of defence requires an extension of anything said in X7.  

MR GLEESON:   I accept because X7 was about direct compulsion over the accused.

BELL J:   Yes.

MR GLEESON:   So, does it extend, or not?  That is the first line of defence.  But, the second line of defence, where we are invoking the accusatorial system, is the with and without analysis that I have just mentioned and how it fundamentally alters the trial – that instead of the prosecution, if they wish, calling him as their witness in a non‑leading fashion, they are now able to simply say, we get his transcript in and his transcript of answers go in under the very route that the interrogatories would go in but they cannot get interrogatories, so it is a classic case of circumventing the restrictions which are in the criminal trial process.

EDELMAN J:   Accepting that the companion principle is a different principle from the privilege against self‑incrimination, in this context though, is there any content to the companion principle that is any different from the privilege against self‑incrimination?  Because if there is not, then it looks like simply a reframing of the principle in such a way that corporations would be included whereas they would not within privilege against self‑incrimination.

MR GLEESON:   Your Honour, Caltex establishes the corporations cannot claim the privilege in relation to demands for production of documents.  In Caltex, the judgments carefully distinguished what the position might be if the demand was to make answers on the charge and did not say the corporation has no rights in that area.  We would be saying, where the demand is upon the corporation to make answers on the charge, it has the same protections a natural person accused has.  That is really part of what ground 2 is about.

GORDON J:   Does your ground 2 extend beyond ‑ not beyond, but include timing questions, or is that not part of that argument?  That it is timing of the issue of the summons and things?

MR GLEESON:   It does, your Honour, because ‑ ‑ ‑

GORDON J:   The answer is, it does, it is part of the argument.

MR GLEESON:   Yes, yes.  So, your Honours, before I enter ground 2, that is our first two lines of defence, could I just indicate the third line of defence is from paragraphs 188 to 189 of the Full Court’s reasons.  And your Honour Justice Nettle asked me, on the last occasion, is this ‑ this is 187 to 189 ‑ is this still tied to 87(1)(b) or is this something broader?  My answer was it is something broader.  It includes 87(1)(b).  But the form of compulsion that the Court is identifying is that to compel Lomas to give evidence would reveal matters about whether he will, or may, give evidence for the appellant at the trial.

Possibly what it is, all those matters are not now known to the prosecution or the Commonwealth, and neither can compel the appellant to reveal them.  So what the Court is saying there is within the accusatorial system, a corporation, as much as a natural person, is entitled to say, I will give you my plea of guilty or not guilty but beyond that, the way that I go about the defence of the charge is something I cannot be compelled to reveal in a trial.  I contest the prosecution’s evidence.  At the end of that, I can reveal whether I am calling Captain Lomas in my case.

NETTLE J:   Even if that is right, though, Nutricia suggests it might be, do you not still face the difficulty identified by Justice Bell that you are conflating Lomas with the corporation?

MR GLEESON:   Our answer to that, your Honour, is that is the bridge we draw through the concept of the person central to the defence.  Now ‑ ‑ ‑

GORDON J:   If that argument is rejected, the centrality argument, then it is conflation.

MR GLEESON:   That is probably right, your Honour.  And what I did want to offer the Court, in answer to whether we have sufficiently defined “centrality”, is to say that a person could be central to the defence, either in fact or in law.  A person is central in fact, if the person is the guiding mind, or if the person’s actions or mental states constitute physical or fault elements of the charge.  And a person is central in law if the person’s answers are attributed to the corporation without further questions of authority coming from the corporation.  That picks up the 87(1)(b).

So what unites those two themes is that the person has such a relationship to the corporation that, either directly or vicariously, the person’s actions, mental states, or answers, are taken in law to be those of the accused.  That is the area where, we say, the principle bites in.

Now, your Honours, they are the three lines of defence.  If you could go please to paragraph 189, there was a construction argument that, while the first sentence appears to be embracing all of the reasoning that has gone before, the second sentence which commences “That is because” is in fact reducing everything to an 87(1)(b) argument, and therefore there is nothing else for you to consider other than section 87(1)(b).

That would be a misreading of the reasons.  What the Court is saying is, for all of the reasons that have gone before, but giving principle attention to section 87(1)(b), we find the content made out.  And to confirm that, if your Honours look at the last sentence where the error in the primary judge is identified, one of the key paragraphs of the primary judge, 120, which you will find on page 63, this was found to be an error, was where the primary judge said, you have pointed to disadvantage and corresponding advantage, but it does not rise to the level of interference. 

And your Honours would read that together with paragraph 42 of the primary judge where he accepts that there was no procedure for deposition within the criminal trial.  And that is the error found by the Full Court, and so the Court is looking at the matter more broadly than simply section 87(1)(b).

Now, your Honours, if one goes to ground 2, could I identify that there are three main issues in play.  The first issue, if I could ask you to go back to the appellant’s written submissions at paragraph 53, in the first two sentences, and observe that that is a submission that Caltex and Nutricia hold:

that corporations could be compelled to provide self‑incriminatory documents or answers to assist the prosecution, even after criminal charges –

And I emphasise the word “or answers”.  And in paragraph 55 in the second and third sentence you see the same proposition.  So the primary argument on ground 2 was that corporations do not have relevant benefits under the accusatorial system of justice because internal to that system they can be compelled to make answers on the charge.  We ask your Honours to reject that submission both at a level of authority and at a level of principle.  At the level of authority, Caltex dealt only with production of documents, not making answers, so it is not authority for it.

As to Nutricia, Nutricia is direct authority against the proposition.  Nutricia is in volume 4, tab 31, page 1374.  And could I just observe why Nutricia is direct authority against the proposition.  The questions in issue are set out at paragraph 13 on page 1381.  There were six questions.  The first four questions concerned the primary judge’s decision on notices 1 and 2, which were notices about sales by the defendant to Woolworths which were the subject of the charge.  They were notices on the charge.  And then questions (e) and (f) were about the remaining four notices which were in a different category.  They were notices not on the charge or subject to a prosecutorial undertaking not to use them on the charge.

And what Chief Justice Spigelman did between paragraphs 34 to 45 is to observe that within the rules of the criminal trial there was no power to administer interrogatories to any accused, corporate or natural person.  That is what Justice James had found at 37 and that is upheld by Justice Spigelman, and the attempt to get interrogatories out of a general rule making power failed.

And at the end of 44 he was in fact applying the clear statement rule.  And the result of that, at paragraph 45, was that there was no power to administer interrogatories in the rule, and at 46 there was therefore the obtaining of an advantage, not available under the rules.  And then if the Court would go to the clear statement rule.  His Honour dealt with that in two places.  Firstly, at paragraph 136 he reached a conclusion about impingement upon the court’s integrity.  And, secondly, at 159, he placed it squarely on the accusatorial system.

GORDON J:   What was that paragraph, sorry, Mr Gleeson?

MR GLEESON:   Paragraph 159.

GORDON J:   Thank you.

MR GLEESON:   So the case stands for authority that a corporation has the protections of the accusatorial system, so far as it is compelled to make answers on the charge, and there would need to be a clear statement if that was to be departed from.  And, accordingly, at 198 his Honour found the contempt made out.  So Nutricia denies the appellant’s case on ground 2.

What Chief Justice Spigelman then did with the other four notices was to say they were not on the charge and there was, at most, a bare possibility of derivative use in respect of the charge.  And in respect to that bare possibility the clear statement rule was satisfied, and you will find that between paragraphs 171 to 176.

Nutricia is important because it answers ground 2, and it also answers the argument which you heard on the last occasion.  And you have now received in the written submissions on the notice of contention that the only matters protected under the accusatorial system are those where the rules expressly deny a particular matter or where they affirmatively restrict a particular matter.

In Nutricia that could not be said to be the case.  There was nothing in the rules saying you cannot get interrogatories; there was simply an absence of a provision for interrogatories.  And so Nutricia establishes that what is relevant is the availability or unavailability within the criminal trial of a particular procedure which is then sought to be circumvented outside the trial.  And that is the answer to the appellant’s written submissions on the notice of contention between paragraphs 9 and 19.  We would urge the Court not to overturn the correctness of Nutricia.

The third case relied upon on ground two was Boral.  As your Honours know, Boral was not a criminal charge.  It was a civil contempt.  The accusatorial system was not in issue and the matter concerned discovery of documents, not making of answers.  So, of the trio of authorities, Caltex, Nutricia and Boral, we would ask you to reject the appellant’s argument on ground 2. 

There are two other things I need to say on ground 2.  The first is, your Honours, in our written submissions, at paragraphs 14 and 20, and in the footnotes, we gave you the provisions of the Magistrates Court Act which govern the summary proceeding.  We put the construction submission that those provisions, consistent with the accusatorial system, do not require the accused to do anything other than enter its plea.  Those provisions draw no distinction between natural person and corporate accused.  Deciding the case on the basis of the Act that governs this matter will confirm that ground 2 should be rejected.  

Your Honour, there was one further argument on ground 2.  If your Honours could locate the appellant’s written oral outline from the previous occasion – outline of argument…..on ground 2?  I have just addressed the argument at paragraph 13.  At paragraph 14, you see an argument which is directed to those paragraphs of the Full Court I mentioned – paragraphs 186 to 188 – and say that, as a matter of principle, the Full Court was in error because of three matters.  This was also advanced orally.  Taking those three matters, as was pointed out in argument on the previous occasion, section 187 of the Evidence Act says nothing about a corporation under charge and contains no clear statement to modify the accusatorial system.

As to the second one, a decision there cited is R v OC at paragraphs 119 and following.  That case, which is in volume 4, at tab 33, contains a critical link, in the reasoning of Chief Justice Bathurst, which the appellant overlooks.  The link is between paragraphs 97 and 103.

BELL J:   What page?

MR GLEESON:   It is page 1477.

BELL J:   Thank you.

MR GLEESON:   Just to recall, OC was the case of, first, an examination of the ASIC Act of a natural person. Then, the person being charged on those three matters and then, finally, whether the transcript of examination could be made available to the prosecution team, consistently with the accusatorial principle.

So what Chief Justice Bathurst correctly, between 97 and 103 said, was that the starting point was that, to make the transcript available to the prosecution team would require the clear statement principle to be complied with because it would be a fundamental alteration of the accusatorial process. And that was the argument which the CDPP put to the Court, namely we accept we are in clear statement territory, we need to find a clear statement in the ASIC Act, because otherwise this would be contrary to the accusatorial principle, and the balance of his Honour’s reasoning was that, by necessary implication, see paragraph 103, one could find a clear statement.

And in that context, at 119 and 123, his Honour said, the historical analysis was supportive of ‑ see paragraph 123 ‑ an executive stream of inquiry into bankruptcy and insolvency.  What his Honour is there doing is saying the clear statement principle has long been complied with for these particular forms of executive inquiry such that, for it to happen and be used in the way it was used here, complies with the clear statement principle.  What the case does not stand for is what the appellant seeks to assert, at 14.2 of the outline, that, in effect, we have got a long history of compulsory inquiry over corporations such that they do not have any rights under the accusatorial system.

Your Honours, the final matter, in paragraph 14, 14.3, is a different type of argument.  Although it is expressed to be an argument about whether the evidence of an employee will or will not lock in a corporate accused, it is really an argument about an employee locking in any accused.  This would apply whether the accused was natural person or not.  And the proposition here put is, well, there is a disadvantage but it is not too great because you could call other evidence to contradict it if you would like, and corporations cannot be charged with perjury.  This argument is misconceived because, in practical effect, the corporation will be locked into the answer given by an employee central to its defence, and the need to call contradictory evidence, from that person or someone else, is part of the material disadvantage that is suffered.  That is part of the answer to 14.3.

Your Honours, the balance of the answer, if I could just ask you to go, if you would, to our written submissions.  On page 15 and 16, at paragraphs 62 to 66 we set out in detail the way in which we argue that the compulsory examination would alter our position under the accusatorial system, both in terms of advantages on the prosecution, see 63, advantages on the appellant, 64, and restriction of our options, 65, and at 66 we deal with the locking‑in.  So our case is that it is the use of a subpoena, in the particular manner and timing of the present case, producing this set of advantages and disadvantages which is what works the contempt.

And coming back to your Honour Justice Gordon’s question about timing, if I could just ask the Court again to observe again the terms of ground 2 of the notice of appeal, which is in the core appeal book.  I am sorry, it will be the amended ground 2, if your Honours have the amended notice of appeal.  That formulation of the court’s alleged error puts what the Full Court found and what we contend for too broadly.

We are not contending for a wholesale proposition that any form of compulsion over any employee about any matter that is in any way relevant to the pending charges, necessarily offends the accusatorial principle.  Our proposition is more limited in this way; firstly, it is compulsion over the employee who is central to the defence, in the manner I have indicated, but secondly, there must be a real risk of interference which will be a fact specific exercise and it will require attention to the particular circumstances.  In the present case, the matters we have identified in paragraphs 63 to 67 of the outline make out a compelling case for this fact pattern.

Firstly, the prosecution through the charges asserted it could prove the guilt of Helicopter Resources without the evidence of Lomas.  Secondly, there was no statement of Lomas in the brief of evidence at the time that the coroner came into play.  And thirdly, when the subpoena was issued – and we do not challenge the issue of a subpoena, per se, the question is was the conduct proposed under the subpoena a problem.  But when it was issued and it came to the implementation of it, the Commonwealth as the co‑accused said, we want to ask questions of your chief pilot on the charge, and when the Commonwealth was asked to pull back and the coroner was asked to limit the questioning, the answer was no, the questioning will be allowed to go ahead without limitation.

And then, finally, unlike almost every other case in the X7 territory ‑ not that it is a complete answer ‑ but no protections were put in place to stop the material being used by the DDP and the Commonwealth in the criminal trial.  And as the Full Court observed at paragraph 206, even at the Full Court hearing the Commonwealth did not offer any realistic forms of protection to keep the material out of the trial.  And so it was that combination of circumstances, creating the effects I have identified in our written submissions, that we submit sustains the orders.

EDELMAN J:   Each of those factors might be seen as a factor that goes to the real risk of interference.  Does the centrality of the witness to the defence add anything to that, either in this case or generally?

MR GLEESON:   The rubric is real risk of interference.  We focused on centrality to the defence because it informs the real risk.  One could think of an examination before the coroner of an incidental employee on a matter peripheral to the charge and uncontroversial, but potentially having some slight derivative use where the real risk test may fail.  So we are not saying this is the outer limit of the principle, but in proving our real risk, the fact that he is the chief pilot, he is the safety man, is just ‑ ‑ ‑

EDELMAN J:   There is one question, rather than two.  It is one question of real risk, not real risk plus centrality to the defence.

MR GLEESON:   Your Honour, that is how I am seeking to put it.  One question, and that is a particular of it.  Your Honours, that is what we wanted to say on ground 2.  Now, your Honours Justice Bell and Nettle asked me questions on the last occasion about committals, and I gave only a partial answer to that.  We wish to supplement that by offering you, in the joint book of further authorities, firstly the particular provisions that would have governed a committal had this been an indictable matter, and this is in aid of the proposition I will be making, that what the appellant has submitted, in writing, on the notice of contention, at paragraph 24, is far overstated.  The appellant has said, I will just note it – it is an established feature of the committal system:

for the prosecution to compel persons other than the accused to reveal the evidence that they would be able to give in advance of the criminal trial.

That is the Commonwealth’s submission.  Now, if we look first at the Rules of the ACT Court, it should be behind tab 2 of the - sorry, it should be behind tab 4 of the bundle.  It is commencing at section 88B of the Magistrates Court Act.  The first protection, we would say, that an accused would have if, for instance, the prosecution was seeking to prove its guilt through its managing director would be to waive the right to committal in order to preserve the position until the criminal trial.  That can be done with the prosecutor’s consent, which one would think should be given.

NETTLE J:   But in that event, the Crown would probably get a Basha at trial, would they not?  They could do the same thing there in advance of putting ‑ ‑ ‑

MR GLEESON:   Not the same thing, your Honour, because what would happen is that at the trial, if the managing director is then brought there under subpoena, he would be called as a witness to give answers to non‑leading questions, and called without the benefit of the knowledge of his evidence, given we are assuming he was not voluntarily co‑operating.  So, while that would happen at trial, the most that could happen would be calling the person subject to those limitations. 

NETTLE J:   What I am suggesting to you is that the Crown had to call him cold, as it were, at trial.  It is quite likely that they would be granted a Basha inquiry in advance of calling him in front of the jury. 

MR GLEESON:   I am not denying that your Honour, I am saying the limitations within the Basha inquiry would be the calling of him to ask him non‑leading questions cold, as opposed to what is happening here, if this subpoena had gone ahead, cross‑examination on the charge, then made available to the DPP and the co‑accused for them to use in an infinite variety of ways in the trial, including first of all now knowing what the defence is, and finding evidence to meet it and using under 87(1)(b) if there are admissions. 

So my submission is there are significant differences, and it is overstated to simply make the proposition in paragraph 24.  But that is the first step, if I could show your Honours the second and third steps.  Under section 90(2), the prosecution would serve a written statement from ‑ I will call it the managing director ‑ if it had one.  Importantly, in the present case of course, if we are considering the counterfactual, the only statement from Captain Lomas was the one made prior to the charges – there was no statement after that.  The prosecution had indicated no intent to use that statement in the hearing. 

BELL J:   Mr Gleeson, can I raise this with you, just as to the utility of taking us to particular provisions governing the committal procedure in the ACT.  As I understood it, you were developing an argument on the last occasion that the concept of what you described, I think, if I am right as a pre‑trial deposition was unknown to the criminal law and it was in that context that the question of the committal hearing was raised. 

Now, in a number of jurisdictions, committal hearings have been either done away with entirely or are severely limited but it remains that it has not been inconsistent with the accusatorial system of criminal justice for a committal hearing at which witnesses are called if there are co‑accused, the co‑accused is free to cross‑examine.  It simply might be, rather than saying that the appellant’s proposition was too broad, perhaps the contention that there was no provision for any form of pre‑trial deposition was broad. 

MR GLEESON:   Thank you.  Your Honour, the truth is in the middle.  What I was seeking to establish was - if I could put it this way.  The language I used of pre‑trial deposition had this attached to it which was cross‑examination on the charge so that those answers, whether adverse or exculpatory were then sitting there as a source of material which could be used in any way in the trial against the accused, whether as proof of evidence, whether as a tender of an admission, whether as a means to seek out other answers.  So it had that particular force attached to it.

I will not, because of time, take your Honours through all these provisions.  The overall submission I am making about them is that what is happening in the committal in these provisions is not that sort of process.  What it is rather is as part of the process of essentially protecting the accused, making sure that there is disclosure – as your Honour said in X7, at paragraph 117 – disclosure of material.  Cross‑examination is now extremely limited.  It is only by leave because of the paper committal process allowing weak cases to be syphoned off.  As a process essentially for the protection of the accused it is not a process for the type of pre‑trial deposition that I was capturing.

So that is where I would seek to put the proposition, your Honour.  In each of the detailed provisions, the appellant has cited a special provision in Victoria which is not in the ACT.  One does not see the pre‑trial deposition of the type I have mentioned.  Even in the Victorian provision, which is a little more extreme than others, it is a variation on Basha which says you can – if you cannot get the person otherwise – bring them in for the taking of their evidence, taken in a non‑leading fashion, not cross‑examination, and then that simply has the statement available for tender at the trial.  That is how I seek to put that question.

I did want to respond to your Honour Justice Nettle’s question on the last occasion about Smorgon because when I put the submission about 264, your Honour asked a question, how does that sit with our proposition?  Smorgon was a case where the corporation was not under charge and it did not examine the clear statement rule principle. 

The appellant has taken up your Honour’s question in paragraph 29 of its submissions and said the accusatorial system is not offended if a tax agent is compelled to reveal matters about a client charged with a tax offence.  Smorgon simply did not deal with that issue.

In paragraph 30 of the appellant’s submissions, on the notice of contention, they cite another provision which is ACT provisions requiring disclosure of defences.  The nature of that provision is somewhat overstated in that submission.  When your Honours look at it, all it in fact says is, for case management purposes you need to say if you are raising a particular defence such as alibi, but you do not have to reveal its content, but, in any event to the extent there are now rules around the country requiring limited disclosure from the accused, they must pass the clear statement test.

Your Honours, could I just step back for one moment and come back to the question your Honour the Chief Justice raised at the beginning?  We would respectfully ask the Court to consider that in a case where the appeal is against the correctness of an order which was protective of a criminal trial, where the criminal trial has concluded and the only reason that the party says we wish the Court to continue in the appellate jurisdiction is there might another circumstance, unidentified, no other case is pointed to, where, if we received your decision on the correctness of these orders we would be better informed as to the limits on our powers and our activities that you would not grant special leave in such a matter.  You would regard it as advisory.

If a private litigant came to you and said, “This might come up on another occasion, treat the correctness of that order as the fulcrum”, you would be very hesitant to consider the matter.  So the submission I have just put certainly relates to ground 3 prematurity.  You would never, I submit, be looking at the correctness of a discretion where its work is fully exhausted.  But, even on grounds 1 and 2 it would be consistent with principle to revoke special leave.

Your Honours, I should now or in just a moment allow Mr Donaghue his aspect of the time.  Could I perhaps just make three final points on his written submissions on the notice of contention.  More could be said but the time does not allow that.  If your Honours go to paragraphs 11 to 14 there is an argument which repeated what was put orally that Brambles supports ‑ ‑ ‑

KIEFEL CJ:   Is that the Commonwealth’s submission?

MR GLEESON:   Yes, that Brambles should be understood as a case where there was not simply the unavailability of the particular matter, but there was a denial of a right to discover interrogatories and that that drove the decision.  When your Honours come to read Brambles we would submit that distinction does not appear from it.

Could you note at the end of paragraph 14 there is a submission that Brambles does not purport to prohibit the valid use of a statutory power to obtain information outside the ordinary processes.  This notion of valid as against invalid we would submit is not helpful.  As Justice Mason – I will just give you the reference – said in Pioneer at volume 3, 1020.

When one is looking at the intersection between power and contempt there are two ways of looking at it, and the preferable way may be to say a statute does not authorise that which would be a contempt, but one does not approach it at a level of power; one approaches it as contempt, not being authorised.  So valid or invalid is not really an appropriate distinction.

The second matter is – if your Honours noted in paragraph 24, in the last two sentences, the proposition that the prosecutors can use the committal to compel reluctant witnesses to give evidence.  The cases in footnotes 31 and 32 do not support that proposition.  Neither was about that subject matter.  If your Honours please, they are the submissions which I wish to put.  Thank you for that time, your Honours.

KIEFEL CJ:   Thank you, Mr Gleeson.  Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, can I commence by highlighting two key points that are not in dispute.  The first is that it was accepted by the respondent on the last occasion that it could not prevent its employee, Captain Lomas, from being called at the trial and that if that occurred and he was compelled to give evidence at the trial his evidence would be that of him personally, as employee, and not that of the company.

That was said a couple of times, page 53 of the transcript, again at 62 to 63 answering a question where your Honour Justice Bell sought clarification of that particular point.  So at trial, if Captain Lomas gives evidence, it is his evidence, and there is no question of self‑incrimination or of Helicopter Resources being compelled to give evidence against itself, contrary to the accusatorial principle, and that has been agreed.

The second key point, not in dispute, is that Helicopter Resources accepted that it would be entitled to call other evidence to rebut the evidence of an employee in circumstances where that evidence was admissible against it under 87(1)(b), meaning that it accepts that it is not bound by the evidence of the employee given pre‑trial any more than it would have been bound by that evidence if it was given at trial, or, indeed, for that matter, if it had been given by way of interrogatories.  In any of those situations, there is admissible evidence against the respondent, but that evidence can be contradicted or qualified by other evidence if the defendant sees fit.

Now, can I just pause by way of digression to note that the submissions you heard earlier this afternoon about interrogatories are, in our submission, a complete red herring in this appeal, and the interrogatories in question are interrogatories issued to the corporation itself, that is conflation, to conflate what is happening with the compulsion of an individual person whose evidence is their own evidence with the company, to seek to equate what is happening and what is in issue in this appeal with the interrogatories, and your Honours should just set the interrogatories question to one side.

Because of those two key points I have just identified, the respondent’s argument depends on it establishing that it is contrary to the accusatorial system of justice for the prosecution to obtain, pre‑trial - this is the temporal point - evidence that it would be entitled to compel, exactly the same evidence it would be entitled compel from the accused at trial, and that makes this case completely different to every accusatorial system of justice case that your Honours have considered before because, in all of those cases where there is an issue about a pre‑trial examination, it is, of course, obvious that at trial the prosecution cannot compel anything from the accused because the accused is not even a compellable witness.

So there is that fundamental distinction between this case and all of the other cases involved in the proposition that the evidence that we are talking about, as the potential subject of the pre‑trial compulsion, is able to be compelled at trial, unlike every other case. 

The way Helicopter Resources was conscious of that gap, it was conscious of the fact that it had a problem in that respect, and the way it sought to bridge that gap, and it did this strongly and repeatedly in the early part of the last hearing, was to say that it was entitled to choose, Helicopter Resources was entitled to choose whether or not Captain Lomas spoke to the prosecution.  It could, they said, direct him not to do so.  Why?  Because that was said to be an aspect of its right to silence, so Helicopter Resources was entitled to control how much the prosecution found out about its conduct from its employees. 

Now, I will not give you all the references to that, but we have put them in footnote 24 of our supplementary submissions in paragraph 22.  That right to give that direction was said to have its origins in some contractual provisions, which in their turns refer to disclosure of commercial information.  I will not trouble your Honours with the question of whether or not the contractual provisions even purport to cover this case, because let us assume that they do.  The problem, as your Honour Justice Gageler raised with our friends at the hearing was that a contractual provision that purported to have that effect would not be enforceable as a matter of public policy.

So that attempt to bridge the gap and to explain why it was that it was inconsistent with Helicopter Resources’ rights to speak to Captain Lomas, the witness, fell away. 

Now, I do not think that that point is now in contest, but nevertheless, I would ask your Honours to go to A v Hayden, which is in the supplementary book at volume 5, just to make two key points about why that part of the argument falls away, both arising from the judgment of Justice Mason. 

So A v Hayden 156 CLR 532, and if your Honours would turn to page 553. You see on that page from the top, the end of a discussion in which Justice Mason considers the old common law offence of misprision of a felony, and concludes at the top of 553 that that offence was abolished by a 1981 Victorian Act in Victoria which abolished the distinction between misdemeanours and felonies. Your Honours will recall that that offence was committed where a citizen with knowledge of felony failed to disclose it.

So, far from there being some deep common law resistance to the idea that a witness with knowledge of serious crime might talk to prosecutors or investigators about that, the common law used to impose an affirmative obligation backed by a criminal offence that said if you do not tell prosecutors or investigators about this serious crime you will be guilty of misprision.  So in the middle of page 553 Justice Mason says:

The consequence of the amendments is that it is no longer the duty of a citizen of Victoria, as it once was, to disclose a felony of which he has knowledge. 

That was important in the stem of the reasoning here, because Justice Mason then says so the contractual provision that purports to prevent you talking to investigators will not be inconsistent with the criminal law.  If there is a problem with it, it is because, as his Honour identifies at the bottom of the page, it is:

at variance with a fundamental head of policy – the public interest in the enforcement of the criminal law and in the administration of justice.

EDELMAN J:  But any statement to prosecutors of a felony would not be a deemed admission by the person subsequently charged. 

MR DONAGHUE:   No, that is so.  But what I am seeking to meet at the moment is the idea that there is some inconsistency with the accusatorial system of justice to compel a witness.  Now, our friend’s case did not confine – your Honour will recall central to the defence argument – one limb of that was 87(1)(b), but there were lots of other limbs.  There were limbs that someone who has intimate knowledge of the facts, someone who is an agent.  So there were agents, there was 87(1)(b), there was intimate knowledge of the facts, there were persons intimately involved in the camp of - so it was not essential to our friend’s case on this limb that the admission be deemed.  Our point is, and your Honours will see this in the middle of 555, that Justice Mason says:

The assumption . . . is that the effective enforcement of the criminal law and the administration of justice, which are central elements in a well ordered democratic society, depend for their efficacy on the unrestricted freedom of each and every citizen to assist and co‑operate with the authorities in the investigation and prosecution of criminal offences. 

So I refer to that, your Honours, because that confirms that Captain Lomas had an unrestricted freedom to choose to co‑operate by giving information to the prosecution in the offence.

If he had exercised that unrestricted freedom voluntarily, the prosecution would have got exactly the same information pre‑trial as they would have got in the course of examination.  So if Captain Lomas was going to say things that would disclose the defence of the accused he could - he was totally free to say those things voluntarily and Helicopter Resources could not stop him. 

If he was going to disclose other aspects of evidence about Helicopter Resources’ behaviour that were centrally relevant to the defence and hard for them to meet, he was free to do so and Helicopter Resources could not stop him.  So Helicopter Resources is forced to contend that even though Captain Lomas had this choice, if he exercises it against them, well, the trial will be in - will be consistent with the fundamental principles concerning the administration of justice in the accusatorial system. 

But if Captain Lomas’ choice is removed, not’ Helicopter Resources’ choice, then somehow, even though the information the prosecution would have is the same, a trial that would conform to fundamental principles is somehow converted into one that does not conform.  That just cannot be right.  The compulsion of the removal of a choice of the part of Captain Lomas says nothing about the consistency of the trial with fundamental principles as against the criminal defendant.

Indeed, in a very real sense, to compel Captain Lomas to give that kind of evidence is just to revert back to the common law’s position, the misprision of a felony type of position, where there would be a criminal offence for failing to disclose information to prosecutorial authorities.  So there is - far from it being inconsistent with the way the common law developed, the idea of a compulsion on witnesses to help, in a well‑ordered, democratic society in the administration of criminal justice is something that the common law used to enforce even more strictly than it does now.

That is perhaps all a complicated way of saying that there is at the heart of Helicopter Resources’ case a mistaken conflation of the position of a witness and a corporate accused and there is no foundation for the idea that the compelling of evidence from a witness, in any circumstances, whether in any of the five or so categories our friends have identified, equals compelling evidence from the witness. 

That is why all seven Justices in Caltex, why Sir Ninian Stephen in Smorgon emphasise that a corporation cannot give oral evidence.  It just cannot happen.  It does not matter whether the person being compelled is the guiding mind, it does not matter whether they are central to the defence, they will always give evidence as a person and our friend’s case just is not reconcilable with that.

Now, ultimately, in our submission, Helicopter Resources made very little attempt to defend the Full Court’s reasoning to the extent that we say dispositively the Full Court said, well, Helicopter Resources would have lost but for section 87(1)(b) - 87(1)(b) makes Captain Lomas’ evidence evidence of you, and therefore the accusatorial system is engaged.  Rather than seek to defend that, our friends say, well, actually that is not what the Full Court said.  They invite your Honours to read the reasons, as if it did not depend upon that mode of reasoning. 

Now, I do not want to go back over that, given the constraints of time, but your Honours will recall in paragraph 189, having stated the principle that there would be the “crucial and dispositive consideration”, as they called it, their Honours then said that is because of section 87(1)(b).  Now, our friends attempt to read that sentence as if it says something other than it says.  This is because it is plainly hitting the reason, and again, without taking your Honours to all of them, but if one goes back to 143, 150, 172, 183 to 184, in all of those paragraphs, one sees statements by the Full Court giving critical and central significance to section 87.

So, if that is how you read the reasons – if we are right about how you read the reasons then the Full Court erred for the reasons I dealt with on the last occasion and your Honours can stop there.  There is no need to go into any of the other questions, subject to the notice of contention. 

Your Honours will recall it was said there are four strands of reasoning that you can distil out of the couple of pages in the judgment from pages 142 through to 144.  So there are four strands of reasoning across that two and a half pages.  In our submission, that is just an elaborate attempt to weave a mode of reasoning that the Full Court did not engage in.  One thing you will note across that whole section of the judgment, there is not one mention of Brambles, one mention of Pioneer, BLF Case, Hammond – none of those cases, which are at the heart of the contempt of court kind of idea, are mentioned at all by the Federal Court.

EDELMAN J:   Why should it not be necessary, if we are going to deal with these issues, to deal with those very questions?  Given that the resolution of this dispute does not directly affect the parties in this case, why would we decide a case on a basis that ignores issues that have been raised – whether or not they had been decided by the Full Court?

MR DONAGHUE:   I make the point only for this reason, your Honour.  Your Honours are, of course, entitled to do that.  That is what is raised by the notice of contention.  If your Honours give leave to file the notice of contention out of time, then that is all squarely raised.  I accept that it was put below.  My point is just that it was not decided. 

So, the appeal can be allowed without but if your Honours want to look at the whole suite of issues – and I can understand what your Honour puts to me – then you would need to do that by the notice of contention because reading these paragraphs of the reasons, in our submission you just do not see the Court deciding this case on any basis other than that section 87(1)(b) has the effect that to compel Captain Lomas is to compel Helicopter Resources contrary to the accusatorial principle.  That does not raise the Brambles, Pioneer issues.  The notice of contention does raise those issues.

KIEFEL CJ:   But, of course, the notice of contention raises a matter which was not the basis of special leave and, in particular, in this case, a matter which Helicopter Resources, as contradictor, was meant to argue.

MR DONAGHUE:   That Helicopter Resources, as contradictor, sought to argue.

KIEFEL CJ:   Sought to argue and acknowledged that it had no interest.

MR DONAGHUE:   No, and that might well be the answer to Justice Edelman’s question as to why your Honours do not go there.  We sought special leave expressly and unapologetically on the basis that this was a test case where the evidence before the special leave court was that the prosecution ‑ ‑ ‑

KIEFEL CJ:   A specific error in the reasoning.

MR DONAGHUE:   A specific error in the reasoning which would otherwise be binding and would have adverse ramifications for Commonwealth regulators exercising coercive powers unless it was overturned.  To get the matter back to this Court was likely to take a long period of time, or at least a reasonable period of time ‑ ‑ ‑

KIEFEL CJ:   But then that leads us into the territory of revocation of special leave in the circumstances.

MR DONAGHUE:   In our submission, not, your Honours, because the error that we assert – the ground 1 error that we assert – we submit we have made good. 

KIEFEL CJ:   But is not the starting point that even at special leave you were questioned about the utility of these proceedings and it was put on, what might be described, as a somewhat tenuous basis that it might be - because there are other matters this is likely to arise again and this would be a convenient way of dealing with it.  That might have been so when one was talking about processes on foot.  But we are in different territory now, are we not?

MR DONAGHUE:   In my submission, we are not because the main basis upon which special leave was resisted was the utility basis.  We fought about that at the special leave stage and we persuaded the Court, in granting special leave, that there was – we did not say this will be done in a way that will have an effect upon the pending criminal prosecution against Helicopter Resources.  We never attempted to say that there would be consequences for the existing proceeding on foot.  But we said – and, in fact, it was then conceded by Helicopter Resources – that there was no question of the matter evaporating because the matter was the validity of the subpoena when issued and an appeal to this Court is an appeal in a strict sense, so the question is fixed at the point in time when the subpoena was issued – was it or was it not correctly issued at that point in time?

So subsequent events cannot change that, and Mr Hutley did not dispute that point.  The issue was one not, in our submission, of the evaporation of the matter or an advisory opinion, but of utility and discretion on the grant of special leave.  And we acknowledged that we had to meet that problem, and we agreed that we would meet the costs of a contradictor in opposing, and all of those issues were explored then, and really my submission is:  nothing has changed since the grant of special leave, because we acknowledged at the grant of special leave that this case was not going to affect the appeal.

We have now prepared for the appeal, appealed at the first hearing, it was listed for a day, this case should have been over, but Helicopter Resources, despite the lack of an interest in doing so said we need a notice of contention, and that meant that we have run over.  Now, having run over to a further hearing, the trial has finished and on discretionary grounds end of the test case at this point in our submission just means that we have litigated the whole set of issues which we will then need to try to come back and litigate to remove from the field the erroneous reasoning of the Full Court. 

So it is, in our submission, not efficient to force the test case to be litigated again, simply by reason of the fact that as things have unfolded in this case it has not come to resolution before the end of the criminal proceeding.  We never said it would.

Your Honours, conscious of the time and accepting the way the argument has been developed by our friends, it is a little hard to unravel them, but moving to the notice of contention, the demarcation line we submit being that the issue on the appeal is the section 87(1)(b) issue and the issue on the notice of contention is the broader contempt analysis.  In our submission, the learned primary judge, Justice Bromwich, was entirely right at paragraph 115 of his reasons on pages 60 to 61 in the book, when he pointed out from the third line in paragraph 115 that Helicopter Resources was seeking to:

rely upon the adverse consequences to it, and the forensic advantages accruing to the prosecution or the Commonwealth, arising from any overriding of Mr Lomas’ rights.  It seeks to achieve this despite this not being a feature of any case identified by Helicopter.  Rather, it seeks to argue for a kind of hybrid, in which there is no reliance on its individual rights or privileges being attacked in the inquest in the manner of those argued for in Hammond, Lee No 1, Lee No 2, X7 and R v OC, nor on interference in . . . BLF or Townley Royal Commission No 2.  However, there is no authority, nor any discernible principle, to support such an interference existing. 

In effect, what Helicopter Resources is inviting your Honours to do, although obviously not expressly, is to borrow from a number of different statements and a number of different lines of authority and to meld them together to create a principle of quite startling width with very dramatic potential ramifications for the use of any coercive investigative powers, which at the moment are constrained where they are to be used against the accused or, in some circumstances, a person about to be charged, but where this Court has never gone further.  And you are being asked to go a great deal further by this notice of contention, and in a way that we submit is not supported by principle. 

To try to make that good without going through lots of the authorities, can I invite your Honours to have regard to paragraph 3 of our oral outline which I am going to develop, but we submit that it is helpful in analysing the authorities to distinguish between three different applications of the principle of legality or the clear statement of principle, which run through the authorities and which explain why some cases were decided as ‑ or are helpful in accurately identifying exactly what is decided in the various authorities upon which Helicopter Resources relies. 

So the first possible relevant application of the clear statement rule is in determining whether or not a statutory power is exhausted upon the laying of charges.  And quite a lot of the cases are explicable as applications of that version of the clear statement rule.  Justice Brennan in Caltex, at 516 to 517, cites Huddart, Parker v Moorehead in that context.  Melbourne Steamship v Moorehead is another familiar example.  Brambles is another example.

In all of those cases the dispositive reasoning is that, as a matter of construction, the legislation is not sufficiently clear that the power that it confers is able to be exercised after the laying of charges because the Court says, usually, absent a clear statement you construe a coercive power directed to gathering evidence of a charge as being conferred for the purpose of facilitating the gathering of evidence so that a decision can be made at the point of charge.

So that once that decision has been made the work of the power is done and if you try then – when that is the right construction of the statute, any attempt to exercise it after charge is invalid, not because of contempt of court or because of the accusatorial system of justice, it is just ultra vires because the power ended.  The purpose of the power was to help you decide whether to lay charges and once you have done that you are exercising it for an improper purpose.  That is the basis of the reasoning in all of those cases I just mentioned.

That manifestation of the clear statement principle is not relevant where, as a matter of construction, the purpose of the power in question is not to decide whether or not to lay criminal charges.  And that was a point that your Honours Justice Gageler and Keane made in using almost those exact words in Lee (No 1), which is a case I will come to at the end of this sequence of propositions but you said that at paragraph 325.

And the reason is, obviously enough, that if the purpose of conferring the power is not to build a criminal case, then there is no reason to read, as a matter of construction, the power as exhausted once charges are laid.  Take, for example, a Food Standards Act.  If it is a coercive power to investigate breaches of food standards, that investigation might be occurring, it might come to a point where it is recognised that someone might have committed an offence, but the purpose of the power is not over because there are other aspects of the food standards breach that the regulator needs to continue to investigate.  Similarly, with environmental breaches, so you can continue to use the power after charge.

Caltex is an example of that.  The environmental breach that had occurred and the laying of charges did not mean that the purpose of the power was exhausted.  Similarly, the Coroners Act is not about gathering evidence to lay charges; it is about ascertaining the cause of the death.  That first aspect of the clear statement of principle is not relevant in this case.

The second aspect is that a coercive power authorising compulsory examinations will not be held to authorise conduct that would depart from the fundamental principles of the accusatorial system of justice, again, unless there is a clear statement to that effect.  And that principle, which is a principle of construction, explains X7, Lee (No 1), Lee (No 2), Strickland – that line of cases.  And to make that good, could your Honours go to two passages in Lee (No 2), which is in volume 2, tab 18. It is (2014) 253 CLR 455.

And when your Honours have it, if you could turn to paragraph 31, where ‑ this is in the joint judgment of all five members of the Court who constituted the Court in this case.  In paragraph 31 it said:

In X7, a majority of this Court held that the powers of compulsory examination given to the Australian Crime Commission were not to be construed ‑

That is, it is a principle of construction:

as applying to persons already charged with offences . . . To do so would be to depart from the accusatorial nature of the criminal justice system . . . Clear words or those of necessary intendment were therefore necessary and neither were present ‑

So that is an express statement of the clear statement rule being the explanation for X7, and similarly in 32:

Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused.

Not anybody else, not anyone in their camp:

The principle of the common law is that the prosecution is to prove the guilt of an accused person.  This was accepted as fundamental . . . so fundamental that “no attempt to whittle it down can be entertained” ‑

But again, the clear statement rule:

albeit its application may be affected by a statute expressed clearly or in words of necessary intendment.

We do not, of course, dispute any of that, but it is clear from that passage that I have just read and in my submission from every single case in this line, every time the Court formulates the principle, it formulates it as a principle about the accused person.  The fundamental principle is about what the prosecution has to do in proving the guilt of the accused, the companion principle is that the accused does not have to assist, it is never expressed in terms that extend to witnesses, legal persons other than the accused.

And the underlying logic of the principle, contrary to the submissions made at page 69 of the transcript of the last occasion, does not support any extension of the idea because the balance between the prosecution and the accused that is at the heart of this application of the clear statement rule is a balance that says nothing about stopping investigators getting evidence from witnesses, no matter how important they might be.

If you needed a clear statement to gather evidence of that kind, one wonders where the boundary of the principle would lie.  Is it no longer permissible to exercise a search warrant, to gather relevant evidence from a tax agent or an accountant in a financial fraud type case?  That evidence, no doubt, will be of critical significance, but the exercise of powers to seize of that kind is common and similarly, ASIC, the ACCC, the Australian Crime Commission, all wield coercive authority, the purpose of which is difficult to understand if not only is the accused off‑limits, but so are all the other witnesses who are intimately involved in the facts or who have critical evidence to give.

The third aspect of the clear statement rule ‑ so I say, our submission of the second aspect is ‑ explains many of the authorities, but is just of no relevance where the coercive power is exercised against a person other than the person who is the subject of the charge.  The third dimension is the most complicated, and we think, ultimately, the limb that our friends rely most upon.  And it is that where, as a matter of construction, you clear the first of those hurdles that I have identified.  So, where, as a matter of construction, the power does purport to allow an investigation to occur post‑charge, that power will then not authorise any conduct that would interfere with the administration of justice in a way that would constitute a contempt of court unless it clearly states an intention to do so.

It is in that manifestation of the clear statement rule that the Commonwealth conceded you find no such thing in the Coroners Act.  So, we do not submit that the Coroners Act displaces the law of contempt in any way.  If it would be a contempt to issue the subpoena in this circumstance, then the decision below is right, albeit that your Honours only get to that on the notice of contention.

GAGELER J:   Is it interference or real risk of interference?

MR DONAGHUE:   Yes, I have put that in short form.  It is real risk of improper interference – is the way – so, it is not any effect that would result in some difference in the criminal trial, but a real risk of improper interference.  Chief Justice Spigelman in Nutricia – I will not take your Honours to it – but at paragraphs 140 to 143, makes a point of saying it is not just interference, it is improper or impermissible interference.  We submit he is right in saying that.  Your Honours, Justices Gageler and Keane, also make that point in Lee in a passage I will come to in a moment. 

GORDON J:   That is real risk as opposed to remote possibility?

MR DONAGHUE:   Yes, that is a distinction.

GORDON J:   It is the BLF picked up in Lee.

MR DONAGHUE:   Yes, indeed.  There are some subtle variations in the formula but usually that is the predominant one.  So, I do not submit that it has to be a certainty but one has to identify, with some precision, what it is that creates the risk.  It is not enough just to say, if the power is exercised here the prosecution will know what Captain Lomas is going to say pre‑trial instead of having to compel it from him at trial.  You have to show why that is an improper interference with the administration of justice and that is where it breaks down. 

So, this category of case, a power that does authorise investigation post‑charge but subject to the law of content, explains Hammond, in particular, and is also – Hammond was a case where there was not a sufficiently clear statement.  By contrast, Caltex and Lee (No 1) were both cases where the examination was not restrained because it was held either that the conduct would not involve contempt at all or there was sufficiently clear statement.

That analysis that I have just set out in summary form is, in our submission, consistent with the reasoning you find in a significant number of authorities.  We have addressed both Brambles and Pioneer in some detail in the supplementary written submissions that we filed at paragraphs 10 to 19, so I will not go to them again.  Caltex, we submit, also supports it.  In Caltex, as a matter of construction, it was clear that the examination could continue after the laying of charge.  So, the Court said, no problem at the first step.  There was no issue of – and the Court held that there was no contempt at the third step. 

We submitted that, in an endeavour to show the improper interference – as opposed to just the plain old effect on the trial – in writing, Helicopter Resources’ Case was that once proceedings were commenced, you were limited to evidence gathering consistent with the rules of court.  And they said the explanation for Caltex was that the notices – the statutory notices – issued in that case would only authorise the gathering of documents that could be obtained under the rules of court.

I took your Honours in some detail on the last occasion through why that cannot be right, having regard to the answers given to the case.  The Court held you could not have got the documents under the rules of court but you could get them under the statutory notice.  That is the effect of comparing the answer to question 7 with the answers to questions 2 and 3, and despite the fact that we spent quite some time on it, Mr Gleeson said nothing about it.

In our submission, there has been nothing to answer that analysis of the ratio of Caltex, so it is not the case that to use statutory powers outside of – to gather material you could not get under the rules of court, is impermissible.  To the contrary, Caltex establishes that it is.  Rather than go through many authorities, can I invite your Honours just to look at, in this Court, Lee (No. 1) ‑ ‑ ‑

EDELMAN J:  Just before we go to the authorities, can I ask you whether or not your proposition would authorise the issue of a subpoena to Helicopter Resources, or if Helicopter Resources were a natural person ‑ so a trading name for, say, Mr Smith ‑ authorise a subpoena to Mr Smith to require him to be cross‑examined at an enquiry prior to criminal proceedings ‑ perhaps not him, but an employee of his for the purposes of getting the benefit of a deemed admission by him, which could then be used at criminal proceedings against him?  Do you say that would be encompassed without your proposition 4?

MR DONAGHUE:   It would.  I would have said no, if your Honour had not changed the example from Mr Smith himself, because he would then be a person accused and would benefit from the X7 principle, but once he is an employee, he is a person, he is not the subject of the criminal process, there is no privilege not to incriminate other people. 

EDELMAN J:  One could use section 87(1) as a backdoor route to obtain an admission from a person who you could not get it from directly, either because of the privilege against self‑incrimination or because of the companion principle. 

MR DONAGHUE:   Well, your Honour, you could get it directly because you could compel the employee.  Having compelled the employee in advance you know what they are going to say.  There is no reason at the criminal trial why you cannot then call them as a witness and ask for their evidence and their evidence will be admissible against the defendant in the ordinary way.  And the defendant will be able to answer it by other evidence of other employees if they seek to do so.

It is not the case, contrary to what has been suggested, that this in some way means the prosecution just escapes any need to call the witness.  Because all the defendant needs to do is say to the prosecutor, I want you to call this witness; this is a relevant witness who you should have to call, and then the prosecutor’s duties would then require it call the witness.

To make that good your Honours, that is what happened in the prosecution in this case.  So Mr Gleeson said in opening, and I am not quite sure what was supposed to be derived from it, but the prosecution changed course.  In fact, what happened, he said Captain Lomas did not have a statement in the brief, but at trial the prosecution changed course.

Well, actually, Helicopter Resources said to the prosecutor, we want you to call Captain Lomas, the prosecutor said we want to know what he is going to say first.  He agreed to confer with the prosecutor, so they did know what he was going to say before he was called.  And then he was called, called by the prosecution, and was able to be cross‑examined.  So that is how this works in the real world.  So it is not a question of just tendering the transcript and the witness never needing to be seen at the trial, far from it.

But my short answer to your Honour’s question is yes.  In a natural person case, the mere fact that the person’s evidence will be – the person’s out‑of‑court evidence will be admissible against the accused, does not put the matter out of court.  And one sees an example of that in the ASIC legislation, which not only authorises the section 19 examination, but has provisions that make the transcript of such evidence admissible in criminal proceedings effectively as a deposition so it is not an unknown procedure.

It would only be problematic if one could point to some reason why the exercise of those powers against a non‑accused was improper.  And the mere fact that it is an evidence gathering procedure conferred by statute outside of the rules of court does not make it improper, as Caltex demonstrates.

BELL J:   It would not have to be improper for a conclusion that it was relevantly unfair for the purposes of the application of section 90, dealing with admissions.

MR DONAGHUE:   That is certainly true.  So that ‑ and that prompts me to answer one aspect of your Honour Justice Edelman’s question that I may have overlooked.  So it is possible to imagine a scenario where the statutory power overrides the privilege against self‑incrimination, so that pre‑trial the examination could occur and compel the witness to incriminate himself.  Whereas at trial, the witness would be entitled to claim the privilege, which would then suggest that there was a difference.

In that scenario, in my submission, there would be a strong case to be made for the exclusion under section 90 of the evidence.  So there are other ways of dealing with any unfairness that might occur.  We think, your Honours, that the analysis that I have sketched is mirrored, I hope it is fair to say, in the reasons of your Honours Justices Gageler and Keane in Lee (2013) 251 CLR 196, volume 2, tab 17.

At 304 in your Honours’ reasons you, referring to the arguments in this Court, point out that as the argument evolved ‑ and this is at the top of 307, the argument:

invoked the principle of statutory construction that has come in recent years often to be referred to as the “principle of legality”.  The argument became that, in light of the “elementary principle that no accused person can be compelled . . . to admit the offence –

charged.  The section did not authorise the conduct.  You then, at 307 to 318, examine the history of the development of the principle of legality in this context, and point out at 313 that it is not limited to fundamental rights; it also extends to systemic values and principles within our system, and the accusatorial system of justice is one of those.  So that is why the clear statement principle, or the principle of legality is relevant here, because of that feature of our criminal justice system. 

In paragraph 320 you identify the contempt test, and pick up a number of the authorities:

‘real and definite tendency to prejudice or embarrass -

but then say, after footnote (562), that:

finding of such a real risk . . . requires the finding at least of some logical connection between the action that is impugned and some feared impediment ‑

and give Hammond as an example.  Then at 322 you pick up the statement about, having referred to the dissent in X7, reference to:

“advantages which the rules of procedure would otherwise deny” ‑

with a footnote to Pioneer and Caltex, which is Justice McHugh’s passage in Caltex which we discussed on the last occasion and which we have set out in writing in our written submissions.  That rule of advantages - advantages that the rules of procedure otherwise deny is not a reference just to the absence of a power to do something otherwise, it is a reference to subtracting from a protection that the rules of procedure provide. 

So, using these powers to get around the privilege against self‑exposure to a penalty is a problem, as is identified in Brambles, but there is nothing to get around when one issues a subpoena to Captain Lomas because Captain Lomas has no rights that are in play.  He is not at risk, he is not accused of anything, he has no right not to give evidence against his employer and so to require him to give pre‑trial evidence does not - and sorry, most importantly, Helicopter Resources has no rights - when one talks about circumventing or giving advantages denied, Helicopter Resources has no right to keep the prosecution in ignorance of what Captain Lomas might say.  Captain Lomas is free to talk to them if he wishes to do so, and once one recognises that step, to remove Captain Lomas’ choice has no effect on Helicopter Resources.  It is exposed to his choice. 

Now, your Honours, there are not many cases where attempts have been made to generalise these principles in these authorities beyond the accused person to witnesses, but there are a couple.  There are two first instance decisions that we have given your Honours in the supplementary bundle, and if I could deal with them very quickly. 

The first is Hak Song Ra v ACC, in supplementary volume tab 7, 138 FCR 51. Hak Song Ra was about the “Pong Su”, which your Honours may recall was a cargo ship, North Korean cargo vessel associated with an importation of heroin into this country.  If your Honours look at paragraph 2:

the Australian Federal Police intercepted a large importation of heroin into the State of Victoria.  Subsequently, the “Pong Su” . . . was intercepted by the Australian Navy and ordered to sail to Sydney.  On 20 April 2003 the complete crew of the “Pong Su”, comprising the 27 applicants and three other crew members, along with four on‑shore persons –

were all charged.  At the committal, 27 people, the applicants in this case, were discharged, but the other three members of the crew and the four onshore persons were all committed to stand trial, so we have criminal proceedings on foot, of which 27 persons were suspected of involvement, but the attempt to commit them failed and the prosecution confirmed it had no intention to institute further proceedings against them.

What those 27 individuals then did was attempt to say to the Crime Commission, “You cannot exercise coercive powers against us to build your case against the others” - the other people who were associated with the “Pong Su” importation – and you see the argument summarised at paragraph 10.

At paragraph 10 it said you cannot use it in relation to concurrent criminal investigations.  That is my argument 1, my category 1.  You cannot use it once charges have been laid.  But also they argued that:

the power was proposed to be exercised in a manner that was calculated to interfere with the exercise of the judicial power –

That is my category 3.  So both of those issues were in play in this case.  They were both rejected.  At 22, the first of the arguments is rejected, and there is a reference to an earlier decision in the Victorian Supreme Court of Justice Southwell in De Greenlaw v NCSC where Justice Southwell had said:

the bringing of charges against a particular accused does not have the consequence of preventing the investigatory power being used against other persons suspected of being involved in the commission of the same or similar offences merely because there is a proceeding before the courts in respect of the same matter, or merely because the person summonsed may be called as a witness in that proceeding.

Now, if that is true of persons suspected, it must be even more true of non‑suspects such as Captain Lomas.  Various cases including Pioneer Concrete do not suggest the contrary.  The court acknowledges the distinct but interrelated notion of the contempt of court argument, which is set out more fully in paragraph 24.  They contended:

that the summonses have been issued with the intention, or for the purpose, of gathering evidence against the accused persons . . . It is then said to follow that the summonses are calculated to prejudice or interfere . . . by taking advantage of procedures not available in the court in which the accused are to stand trial –

by reference to Hammond, Brambles, Pioneer.  It is much the same argument your Honours have now heard, and it is rejected at paragraph 26 ‑ said to face “insurmountable difficulties”, and I will not read all of that.

But the analysis is, in my submission, correct.  The other first instance case is Justice Austin’s decision in ASIC v Elm Financial, which is in the supplementary volume at tab 6.  This is a penalty proceeding where after the penalty – so it is civil – after the penalty proceeding was commenced, ASIC sought to use its coercive powers and Justice Austin at paragraph 34 likewise separates, identifies - paragraph 34 is on page 302, and there Justice Austin separates two questions – the question of construction, that is my category 1, and the question of contempt, my category 3.  He again rejects both arguments.

There is a useful discussion of De Greenlaw at paragraphs 40 through to 43.  De Greenlaw involved the examination of Mrs de Greenlaw with respect to matters that overlapped with matters with which her husband faced pending prosecution.  The examination was for the purpose of deciding whether she had herself also committed an offence.  So the fact that he had been charged did not mean that the power was exhausted with respect to her.  In paragraph 42, Justice Southwell said:

neither of [Pioneer or Brambles] dealt with an investigation of one who is or might become a mere witness in other proceedings.  They do not, in my opinion, stand as authority for the proposition for which Mr Sher contends -

because the ramifications, if they did, were that once one person was charged, coercive powers would cease to be available against anybody else, simply on proof of the risk that the other witnesses might give evidence that would be relevant to the case against the person who has already been charged.  So, this argument is not new.  The authorities relied upon to support it have been deployed for this purpose before and it has been correctly rejected for the reasons given by both of the first instance judgments to which I have referred.

As to committals, I will not take your Honours to the specific provisions for the very reason that your Honour Justice Bell gave.  We are not really, ultimately, here concerned with the minutia of what could have happened in an ACT committal.  But, it is, in our submission, clear that it is quite possible – whether by way of committal or by way of Basha inquiry – for the prosecution when confronted with a witness who appears to have highly relevant evidence to pre‑trial compel that witness to reveal what they might say in a way that means that before the trial ever starts, the prosecution know whatever it is that that witness might say bearing upon the possible defence of the proceeding.

One sees that particularly clearly – without taking your Honours to it – in the ACT in section 90AA(6) to (8).  The prosecution needs leave but with leave they can require someone to attend to give evidence as long as it is not a sexual offence proceeding and the person is the complainant.  It is also worth bearing in mind on the question briefly raised by your Honour Justice Nettle with my friend about unfavourable witnesses that in section 38 of the Evidence Act, there are several limbs whereby a witness can be declared unfavourable, but one of them, 38(1)(b), is that:

A party who called a witness may, with the leave of the court, question the witness, as though the party were cross‑examining the witness, about –

. . . 

(b)a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination‑in‑chief, making a genuine attempt to give evidence –

So, if it be the case that there were a witness in the camp of the accused who was resisting – refusing to co‑operate with investigators pre‑trial – but whose evidence the prosecution reasonably apprehended would bear upon the proceeding and when called, at committal, or on Basha, that witness prevaricates, disseminates, refuses to say what they know – that is a basis upon which cross‑examination of the witness might be permitted.  So, it is just not right for our friends to say, a pre‑trial examination of a witness is an anathema to the criminal proceeding – to the contrary.

In Victoria – which is just illustrative – there is a procedure that we have referred to in writing, expressly enacted so as to allow the prosecution to get evidence from reluctant witnesses, pre‑committal.  The second reading speech, which we have quoted in footnote 33 of our supplementary submissions, makes that clear.  Our friends said, you can avoid any problem just by waiving the committal but, as he acknowledged, you do need the prosecutor’s consent for that.  If there were to be a central witness, then that might well be relevant to the question of consent.  But, even if the consent was given, there is the Basha inquiry route and there would be a strong argument for such a case.  

So, while Mr Gleeson disavowed any attack or any inconsistency between his submissions and a committal, it is difficult to see any principle basis for how that distinction is to be drawn.  If it is okay in a committal to subject a witness to a compulsory pre‑trial examination, then why is it not permissible to submit the same witness to a compulsory pre‑trial examination, directed not to the criminal proceeding but to some other lawful purpose, such as why the death occurred, in the inquest?  If anything, that seems more permissible than a coercive examination tied to the criminal prosecution.

Finally, your Honours, central to the defence concept, which was relied upon as the new and expanded universe in which the accusatorial principle is said to be relevant, is not just totally unsupported by authority, but not workable in practice because its boundaries are so unclear that in the context of almost any exercise of coercive powers that can be identified as a practical or realistic possibility there would be scope for litigation about whether or not to attempt to compel that person was in some way inconsistent with this new and expanded principle, and that has evident potential to encourage, extended by well‑resourced defendants in particular, extended litigations about the boundaries of coercive powers, not just by coroners but by corporate regulators, organised crime investigators, and others of the same kind.  It is not a sufficiently precise principle. 

As to our friends particular attempt to invoke the “guiding mind” notion, that too is not – I do not say this pejoratively, but it is not original.  That was the issue that Justice Stephen grappled with in part in Smorgon, and without taking your Honours back to Smorgon in light of the time, particularly from pages 481 to 484 of his Honours reasons, he starts by saying that corporations cannot give evidence.  Even when a witness is compelled, the evidence remains the evidence of a witness.

He then says I have not overlooked the important area of law about the attribution of liability through a guiding mind.  He refers to the authorities and he makes the point, which, in my submission, is a powerful point, that this guiding mind idea was a fiction created for the specific purpose of allowing liability to be imposed upon corporations where it could not otherwise be imposed.  If you need a guilty mind, then – there is a fiction, a guiding mind principle created to impose liability. 

Our friends take this idea that is intended to help you impose liability on a corporation and they flip it around so it is intended to protect the corporation from the imposition of liability upon them.  Justice Stephen considered that argument, and said the attribution principles inherent in a guiding mind concept – he said this in the middle of page 483 – have no relevance in the context of the compulsion of evidence from a corporate employee and he cited UK authority to the same effect, and both of those cases were then endorsed in Caltex.

So, in our submission, while evidently useful in some areas of the law, the fiction involved in the guiding mind should not be extended beyond the purpose it was created to serve.  That was a point your Honour Justice Keane made in argument on the previous occasion, and we respectfully endorse that observation and submit that it underpins the reasoning that one sees in Smorgon.

I think, your Honours, I have said in answering your Honour the Chief Justice earlier on the utility point, but if I could just remind your Honours that the matter the subject of this appeal was identified by the Full Federal Court at 29 and 32 of its reasons, in the terms that I identified, the validity of the decision to issue the subpoena to Captain Lomas.  So if that is the matter, that matter still exists and has not been affected by the subsequent issues, so there is no question here of an advisory opinion.  That concrete dispute, albeit it was a concrete dispute some time ago, is the subject matter of the appeal in the strict sense to this Court.

The issue, therefore, is just one of discretion, and the parties, having fully agitated them, the discretionary issues, at the special leave hearing, and now, having devoted considerable resources to two hearings in this Court by way of test case, to revoke special leave on discretionary grounds now will mean considerable waste of resources without resolving the contested question of the correctness of the Full Court’s reasoning on the point that we sought to test by bringing the appeal.  So, in our submission, your Honours should not, at this late stage in the matter, render all of the argument that has occurred across two days redundant on discretionary grounds.

GAGELER J:   Mr Solicitor, if the matter is the validity of the subpoena, was it appropriately resolved by the order made by the Full Court, which was to stay the operation of the subpoena until the finalisation of the prosecution?

MR DONAGHUE:   Your Honour, I can see the force of that.  We, of course, are appealing against those orders, so I do not need to seek to defend the way in which the Court there expressed that order, but they were quite unequivocal, in the paragraphs I have identified, in the identification of the matter that they considered was being litigated, so it might be that – well, in the event that your Honours were to allow the appeal then the orders would just be set aside; in the event that your Honours were to dismiss the appeal, probably nothing now follows from that in light of the water that is under the bridge since the order was made. 

NETTLE J:   Why is it valid?  You say it should not have been issued.  It should not have been issued, it should just have been set aside, should it not? 

MR DONAGHUE:   We say the reverse.  We say that there was no difficulty with the issuing of the subpoena so it should not have been stayed.  But it was both validly issued when made and should not have been stayed because it did not relevantly infringe ‑ ‑ ‑

NETTLE J:   Improperly interfere.

MR DONAGHUE:   ‑ ‑ ‑ any of the legal principles that I have identified.  In particular, on the notice of contention point, it did not create a real risk of an impermissible interference with the administration of justice, because there is no law against the coercive examination of witnesses.  Your Honours, could I have one moment.  If the Court pleases.

KIEFEL CJ:   The Court reserves its decision on this matter and adjourns to 10.00 am tomorrow. 

AT 4.15 PM THE MATTER WAS ADJOURNED