Director of Public Prosecutions (Cth) v Galloway

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0153

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Applicant
v
DONALD GALLOWAY (A PSEUDONYM)[1] & ORS (according to the Schedule attached)	Respondents
and
AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION	Intervener

[1]Because this is a pre-trial proceeding, pseudonyms have been used throughout this judgment in place of the names of the respondents and of certain other persons and activities. Certain paragraphs have also been redacted for that reason.

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JUDGES:	MAXWELL P, REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	28–29 November, 5 December 2016, 20–21 February 2017
DATE OF JUDGMENT:	25 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 120
JUDGMENT APPEALED FROM:	[2016] VSC 334R

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CRIMINAL LAW – Appeal – Interlocutory appeal – Permanent stay – Compulsory examination of respondents before charge – Examination transcripts provided to investigators and prosecutors – Examinations unlawful – Dissemination of transcripts unlawful – Respondents subsequently charged – Derivative use of examination material – Whether fair trial possible – Whether reckless unlawfulness – Whether respondents suffered incurable forensic disadvantage – No prejudicial derivative use identified – No incurable unfairness – Appeal allowed – Stay order set aside.

ADMINISTRATIVE LAW – Statutory authority – Investigation of organised crime – Whether investigation validly authorised – Power of compulsory examination – Respondents compulsorily examined – Whether examinations authorised by statute – Whether power exercised for improper purpose – Australian Crime Commission Act 2002 ss 7A, 7C, 12, 17, 24A, 25A, 30.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S McNaughton SC, Commonwealth Director of Public Prosecutions, with Mr N Robinson QC and Mr K Armstrong	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Respondent (Galloway)	Mr M Cahill SC with Mr M Stanton	Hicks Oakley Chessell Williams
For the Respondent (Strickland)	Mr C Mandy	Jimmy Lardner & Associates
For the Respondent (Hodges)	Mr B Walker SC with Mr G Livermore and Ms C Currie	Holding Redlich
For the Respondent (Tucker)	Mr P Tehan QC with Mr C Carr	Slade & Parsons Solicitors
Intervener	Ms S Maharaj QC with Mr P Doyle	Australian Government Solicitors

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TABLE OF CONTENTS

Summary

Factual background

The issues in this Court
PART I: THE GROUNDS OF UNLAWFULNESS
Issue 1: were the publication decisions unlawful?

The judge’s analysis

The submissions

The decision in Seller [2]

The decision in Lee [2]

Conclusion

The meaning of ‘publish’
Issue 2: was Mr Sage reckless?

The judge’s findings

The state of the law at the time

Consideration
Issue 3: were the Determinations valid?

The Financial Crimes Determination

The Money Laundering Determination

The submissions

Consideration
Issues 4 and 5: were the examinations authorised by the Act?

Was the examination power available?

Consideration

Conclusion
Improper purpose

The applicable principles

Consideration

Conclusion

PART 2: THE GRANT OF A PERMANENT STAY
Issue 6: the forensic disadvantage issues

Preparing the case

The course of the application before the judge

Forensic disadvantage: advancing the prosecution case

Conclusion

Forensic disadvantage: constraining forensic choices

The appeal submissions

Specific constraints on forensic choice

A new prosecution team?

Alternative basis: abuse of process

CONCLUSION
SCHEDULE OF PARTIES
SCHEDULE OF AUTHORITIES

MAXWELL P
REDLICH JA
BEACH JA:

Summary

For more than three decades, the investigation of organised crime in Australia has been the responsibility of a standing national authority, equipped for that purpose with a power of compulsory examination.[2] Unsurprisingly, the exercise of that power has proved controversial in cases where the examinee is a person charged with, or suspected of, a criminal offence, since the compulsion to answer questions is in direct conflict with the common law privilege against self-incrimination.[3]
[2]X7 v Australian Crime Commission (2013) 248 CLR 92, 106 [16] (‘X7 [1]’).
[3]In X7 [1], the High Court held that a person who had been charged could not be compulsorily examined.

When the National Crime Authority (‘NCA’) was established in 1984, it was given the power of compulsory examination but the examinee had a complete statutory immunity against either direct or ‘derivative’ use of information supplied in answer to questions.[4] When the NCA was succeeded by the Australian Crime Commission (‘ACC’)[5] in 2002, direct use immunity was retained but derivative use immunity was removed.[6]
[4]National Crime Authority Act 1984 (Cth) s 30(4), (5), (7) (‘NCA Act’).
[5]Now also known as the Australian Criminal Intelligence Commission (see Australian Crime Commission Act 2002 (Cth) s 7(1A), Australian Crime Commission Regulations 2002 (Cth) reg 3A).
[6]The derivative use immunity was originally removed from the NCA Act by the National Crime Authority Legislation Amendment Act 2001 (Cth) sch 1 item 12. This removal was retained upon the enactment of the Australian Crime Commission Establishment Act 2002 (Cth) which replaced the NCA with the ACC. See also A v Boulton (2004) 204 ALR 598, 613–14 [93]–[100] (‘Boulton [1]’); X7 [1] (2013) 248 CLR 92, 106–7 [17]–[20].

The Australian Crime Commission Act 2002 (Cth) (‘the Act’)[7] provided that, if publication of the record of an examination ‘might prejudice the fair trial of a person who has been, or may be, charged with an offence’, the examiner was obliged to direct that the record not be published.[8] The duty of an examiner to prohibit publication where necessary to ensure a fair trial is central to the present proceeding.
[7]Also referred to as the ‘ACC Act’.
[8]ACC Act s 25A(9).

This appeal concerns examinations of the respondents which were conducted by the ACC in 2010. At the time, each of the respondents was under investigation by the Australian Federal Police (‘AFP’) on suspicion of having committed offences against Commonwealth law. The judge found that the ACC was not investigating those matters itself but had agreed, at the AFP’s request, to use its coercive powers to examine the respondents on the matters the subject of the AFP investigation.

The ACC examiner permitted the AFP investigators to be present during the examinations. The non-publication orders which he made permitted the examination transcripts to be disseminated to the AFP and the Commonwealth Director of Public Prosecutions (‘CDPP’). The respondents were subsequently charged with Commonwealth offences. They applied for a permanent stay of the criminal proceedings, contending that both the conduct of the examinations and the dissemination of the examination material had been unlawful. As a result of what they argued was deliberate or – at least – reckless unlawfulness, they would be unable to receive a fair trial.

The trial judge was confronted with a task of great difficulty. The hearing of the stay application extended over some 57 days, between August 2014 and June 2015.[9] There was an extraordinary volume of documentation to be analysed and her Honour had to resolve a series of disputes over access to information, involving claims for both legal professional privilege and public interest immunity. Some 23 witnesses from both the AFP, the ACC and the CDPP were cross-examined by counsel for the respective respondents, a process which took approximately 30 days.
[9]Early in the hearing, the ACC was granted leave to intervene. The same leave was granted to the Commission on this application.

Her Honour also had to consider written submissions amounting to almost 1,000 pages. The submissions addressed a wide range of arguments concerning unlawfulness, unfairness and forensic disadvantage, and contained extensive analysis of factual matters. Some indication of the scale and complexity of the issues which her Honour had to decide is given by the fact that the hearing in this Court took five full days.

As will appear, the respondents sought to establish before the judge that, at the time of their examinations, they were suspects and, for that reason, immune from examination. That contention necessarily depended on demonstrating how far advanced the AFP investigation was when the examinations commenced. As a result, the respondents’ cross-examinations of AFP and ACC witnesses — and a substantial part of their written submission — were directed at showing that the AFP’s document-based case was largely complete by that time. Little effort was devoted to showing what use the AFP investigators had subsequently made of their answers. Then, on the first day of oral argument on the stay application, the respondents abandoned the primary argument pursued during the voir dire, that the examinations were unlawful because the investigators had already concluded that there was sufficient evidence to charge them.

The judge upheld the stay application. Her Honour ruled that, as each of the respondents was at the time ‘a person who may be charged’ within the meaning of s 25A(9) of the Act, the examiner had been bound to prohibit publication of the examination material to the AFP and CDPP, in order to avoid the risk of prejudice to a fair trial.[10] His failure to do so was unlawful. Her Honour held, further, that the failure was ‘reckless … to an unacceptable degree’.[11]
[10]Ibid [864].
[11]Ibid [881].

Her Honour concluded that, as a result of the unlawful dissemination of the material, the respondents would be unable to receive a fair trial. She was satisfied that the material had been used unfairly in the assembly of the prosecution case and that the respondents would be unfairly constrained in the conduct of their defences.[12] Her Honour also upheld the respondents’ contention that the reckless unlawfulness, associated with the conduct of the examinations and the dissemination of the material, provided an additional basis for a stay. Thus she concluded that, in the ‘exceptional circumstances of the case’, a stay was warranted

not only as a result of the forensic disadvantage considerations, but also in order to protect confidence in the administration of justice.[13]

[12]Ibid [814], [846], [870]–[873].

[13]Ibid [883].

The CDPP has sought leave to appeal from her Honour’s decision. For reasons which follow, we would grant leave to appeal, allow the appeal and set aside the stay order. The challenge to the unlawfulness finding fails but the challenges to the findings on recklessness and forensic disadvantage succeed.

We respectfully agree with her Honour that the dissemination of the examination material was unlawful. We have also concluded that the examinations were not authorised by the Act, and were conducted for an improper purpose, as the respondents argued in their notice of contention. The ACC was not conducting any investigation of its own and instead made its coercive powers available to the AFP for the purpose of advancing the AFP’s — quite separate — criminal investigation.

We have concluded, however, that the finding of recklessness cannot stand. On the evidence, the examiner honestly believed that the dissemination of the material was lawful.

It was common ground on this application, as it was before the judge, that unlawfulness alone could not justify a stay.[14] The respondents needed to show either that they had suffered irremediable prejudice, such that they could not have a fair trial, or that the unlawful conduct was so egregious as to require a stay, irrespective of unfairness, in order to protect confidence in the administration of justice.[15]
[14]X7 v The Queen (2014) 246 A Crim R 402, 423 [109] (‘X7 [2]‘).
[15]Ibid 419–20 [91]–[93]; see also Jago v District Court of New South Wales (1989) 168 CLR 23, 34 (Mason CJ); 47–8 (Brennan J); 75 (Gaudron J) (‘Jago’); Dupas v The Queen (2010) 241 CLR 237, 250 [35].

In our view, the respondents failed to demonstrate any material forensic disadvantage resulting from the conduct of the examinations. As will appear, it was precisely because — as the respondents themselves had sought to demonstrate before the judge — the AFP’s investigation was so well advanced by the time the examinations were conducted that the unlawful dissemination of the examination material made so little difference to the preparation of the prosecution case. And the setting aside of the recklessness finding means that the alternative basis for the stay also falls away.

Factual background

As we have said, each of the respondents is charged with a Commonwealth offence. Before any of them was charged, each was asked by the AFP whether he would participate in a cautioned record of interview. Each declined the request.

Following the refusals, each respondent was examined by an ACC examiner (Mr Sage) pursuant to the coercive powers conferred by s 24A of the Act. Galloway and Hodges were examined pursuant to a determination made under s 7C(3) of the Act, known as the ‘Financial Crimes Determination’.[16] Strickland and Tucker were examined pursuant to a determination known as the ‘Money Laundering Determination’.[17]
[16]ACC, Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes), 25 June 2008.
[17]ACC, Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering), 9 June 2010.

As already mentioned, the transcripts and material obtained upon their examinations were made available to AFP investigators and to prosecutors representing the CDPP. Her Honour found that the examiner ought to have directed under s 25A(9) of the Act that the material not be published to the AFP or the CDPP.[18]
[18]Reasons [864].

Further, her Honour found, the case involved ‘the deliberate coercive questioning of suspects, because they had exercised their rights to decline a cautioned police interview’; and that the examination power had been used ‘for the very purpose of achieving forensic disadvantage to [the respondents], and advantage to the prosecution, in foreseen future legal proceedings’.[19] The judge concluded that it was

practicably impossible to ‘unscramble the egg’, so as to remove the forensic advantage which had been improperly obtained by the prosecution, or to ameliorate the forensic disadvantage suffered by at least three of [the respondents].[20]

[19]Ibid [880].

[20]Ibid [879].

As to the examiner who conducted the examinations of the respondents (Mr Sage), the judge said:

Although I am not able to conclude that Sage acted in deliberate disregard of his statutory obligations, for the reason[s] given earlier I am satisfied he was reckless as to his various obligations to an unacceptable degree. Had he exercised his powers independently, and with appropriate diligence, those responsible for investigating [the respondents] and preparing the brief would never have received the information which they in fact obtained.[21]

[21]Ibid [881].

In describing the forensic disadvantage suffered by the respondents, the judge said:

In the case of [Hodges, Tucker and Strickland], the practical effect of each of their examinations has been to constrain their legitimate forensic choices in the conduct of the trials, by reason of the answers they were compelled to give on oath in their examinations. They have also been constrained in their ability to test before a jury the basis on which the documents in the prosecution brief have been selected.
There is no doubt that the AFP have used information obtained from the examinations to guide their selection of documents to include in the briefs, from among the millions available to them. They have also been able to use that information to go and search for evidence to establish that [the respondents] had seen particular documents which they told Sage they could not recall having seen.
I am satisfied that the AFP officers who attended the examinations of [the respondents] could not have put what they learned completely out of their minds, and would have been significantly assisted (even if indirectly) by that knowledge, in conducting their investigation and compiling the brief for the CDPP.[22]

[22]Ibid [870]–[872].

As we have said, the CDPP sought leave to appeal against the judge’s order granting a permanent stay. Proposed grounds 1 and 2 challenge the judge’s conclusions that s 25A of the Act required that police investigators and prosecutors must, in the circumstances of this case, have been precluded from access to the compulsory examinations of the respondents.

These grounds raise for consideration the proper construction and operation of s 25A(9) of the Act. The construction question also arises under grounds 9 and 10, which dispute the judge’s conclusion that Mr Sage was reckless in the exercise of his powers under s 25A of the Act. Grounds 3 to 8 challenge the judge’s conclusions about the forensic disadvantage caused to the respondents and the forensic advantage given to investigating police and prosecutors.

By notice of contention, the respondents renewed a number of unlawfulness arguments which they had advanced before her Honour, but which she rejected. They contended that — apart from the s 25A(9) unlawfulness — her Honour should have found that the conduct of the examinations, and the dissemination of the material, was unlawful on three additional bases, namely, that:

(a) the Determinations did not comply with the Act, and were invalid;

(b) the examinations were not conducted ‘for the purposes of a special ACC operation/investigation’, as required by the Act; and

(c) the summonses were issued, and the examinations conducted, for an improper purpose.

The issues in this Court

The issues in this Court may be summarised as follows:

1.Whether the examiner’s decisions to permit dissemination of the examination material (‘the publication decisions’) to the AFP and CDPP were unlawful.
2.Whether the examiner was reckless in the exercise of his powers under s 25A of the Act.

3. Whether the Determinations were invalid because:

(d) they were too general and therefore failed to comply with s 7C(4) of the Act; and/or

(e) the ACC Board did not consider (and could not have considered) whether ‘ordinary police methods of investigation’ were likely to be effective, as required by s 7C(3) of the Act.

4.Whether the examinations were unlawful because the summonses were issued or the examination conducted ‘for the purposes of an ACC special investigation’.
5.Whether the examinations were unlawful because they were conducted for the improper purpose of providing a forensic advantage to investigators and prosecutors.
6.Whether any consequential forensic disadvantage suffered by the respondents was sufficient to justify a permanent stay of the prosecutions against them.

Our conclusions are as follows:

1. The publication decisions were unlawful.
2. It was not open to the judge to make a finding of recklessness.

3. Each of the Determinations was valid.

4.The examinations were unlawful because they were not conducted ‘for the purposes of an ACC special investigation’.
5.The examinations were also unlawful because they were conducted for an improper purpose.
6.There was no sufficient forensic disadvantage suffered by any of the respondents to justify a stay of proceedings.

PART I: THE GROUNDS OF UNLAWFULNESS
Issue 1: were the publication decisions unlawful?

As mentioned earlier, s 25A(9) of the Act requires an examiner to direct that material from an examination not be published

if the failure to do so might … prejudice the fair trial of a person who has been, or may be, charged with an offence.

Her Honour’s finding was that, by the time each respondent was examined, he was regarded by the AFP as a suspect and was ‘a person who may be charged’ within the meaning of s 25A(9).[23] That finding is not challenged by the CDPP, nor by the ACC.

[23]Reasons [594].

It is accepted, therefore, that at the time of the examinations each of the respondents was a person in respect of whom the duty under s 25A(9) was capable of being enlivened, that is, he was ‘a person who … may be charged with an offence’. The first issue debated on the appeal was whether, on the proper construction of the provisions, the duty was in fact enlivened in these circumstances.

It is necessary, first, to set out in full the provisions of ss 24A, 25A and 30 of the Act:[24]
[24]Later amended by Law Enforcement Legislation Amendment (Powers) Act 2015 (Cth) sch 1 items 11–16, 24–26.

24A Examinations
An examiner may conduct an examination for the purposes of a special ACC operation/investigation.

25A Conduct of examination
Conduct of proceedings
(1) An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit.

Representation at examination
(2) At an examination before an examiner:
(a) a person giving evidence may be represented by a legal practitioner; and
(b) if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner—the person may be so represented.

Persons present at examination
(3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.
…
(7) If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must:
(a) inform the witness that the person is present; and
(b) give the witness an opportunity to comment on the presence of the person.

(8)To avoid doubt, a person does not cease to be entitled to be present at an examination before an examiner or part of such an examination if:
(a) the examiner fails to comply with subsection (7); or
(b) a witness comments adversely on the presence of the person under paragraph (7)(b).

Confidentiality
(9) An examiner may direct that:
(a)any evidence given before the examiner; or
(b) the contents of any document, or a description of any thing, produced to the examiner; or
(c) any information that might enable a person who has given evidence before the examiner to be identified; or
(d) the fact that any person has given or may be about to give evidence at an examination;

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
(10) Subject to subsection (11), the CEO may, in writing, vary or revoke a direction under subsection (9).

(11) The CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
…

30    Failure of witnesses to attend and answer questions
…
Failure to answer questions etc.
(2)    A person appearing as a witness at an examination before an examiner shall not:
(a)      when required pursuant to section 28 either to take an oath or make an affirmation—refuse or fail to comply with the requirement;
(b)     refuse or fail to answer a question that he or she is required to answer by the examiner; or
(c)      refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.

(3)    Where:
(a)     a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and
(b)     the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;

the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made.
Use immunity available in some cases if self‑incrimination claimed
(4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:
(a) a person appearing as a witness at an examination before an examiner:
(i) answers a question that he or she is required to answer by the examiner; or
(ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and

(b) in the case of the production of a document that is, or forms part of, a record of an existing or past business — the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and
(c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.

(5)     The answer, or the document or thing, is not admissible in evidence against the person in:
(a)     a criminal proceeding; or
(b)     a proceeding for the imposition of a penalty;
other than:
(c)      confiscation proceedings; or
(d)     a proceeding in respect of:
(i) in the case of an answer — the falsity of the answer; or
(ii) in the case of the production of a document — the falsity of any statement contained in the document.

The judge’s analysis

Her Honour summarised the effect of these provisions as follows:

It is clear from the authorities that ss 25A(3) and (9) are both provisions that require unfairness to a potential trial of a person who has been or may be charged, by derivative use of examination material, to be addressed by limiting the people who have access to that material.
The examiner is empowered and required by s 25A(3) to control who is present at the examination, and empowered by s 25A(9) to make a non-publication order in respect of any evidence that a person has given. Moreover, the exercise of any other powers regarding the use or dissemination of material under the ACC Act apply, subject to the overriding and mandatory exercise of the s 25A powers to ensure the fairness of a potential trial.
Thus, the ACC Act deals with the risk posed by the derivative use of examination material to a fair trial, in respect of people who have been or may be charged with an offence, by controlling access to the examination and the information flowing from it. What is appropriate in a particular case will of course depend upon the circumstances of the person to be examined. Where that person is a suspect who has been requested to participate in, and has refused a cautioned [record of interview] with investigators, little imagination is required to discern the appropriate application of the requirements of s 25A to protect the fairness of the potential trial(s) of those suspects. Investigators and prosecutors must be precluded from access to the examination material.
The intention of the statutory scheme is to strike a balance between the interference with the administration of justice and the fair trial of an accused on the one hand, and the public interest in the investigation of federally relevant criminal activity on the other. This intention, and the balancing exercise, is entirely circumvented if police investigating a suspect in the position of [the respondents] not only arrange for the person to be summoned to be examined about the subject matter of prospective charge(s), but also attend the examination, dictate the questioning of the suspect, participate in tactical adjournments and discussions during breaks in the examination, obtain the transcripts of the evidence, and facilitate the provision of the material to the prosecuting agency.[25]

[25]Reasons [561]–[564] (emphasis in original, citations omitted).

Addressing the case at hand, her Honour said:

The provision [s 25A(9)] imposes an objective standard (whether the person has been, or may be, charged), not a subjective standard (whether the examiner believes the person has been, or may be, charged). So, an examiner cannot get around the obligation by failing to make appropriate enquiries as to a person’s status.
On the proper construction of s 25A(9), Sage was obliged to give a non-publication direction if the failure to do so might prejudice the fair trial of any of [the respondents] who may be charged with an offence. In deciding the content of a non-publication direction, Sage was required to consider what information it would be appropriate to publish, to whom it would be appropriate to permit publication, and what manner of publication would be appropriate.
What was required to comply with s 25A(9) is to be assessed as at the time of the examinations, not with the benefit of hindsight.
As already discussed, it is clear that each of [the respondents] was, at the time of his examination, a person who may be charged with an offence. That fact was well known to various AFP and ACC staff, as well as Sage himself.
The provisions of the ACC Act, in particular s 25A, preclude any inference that the ACC Act permits any derivative use of self-incriminating evidence, in respect of a person who falls within the protective provisions.
Moreover, the exercise of any other powers regarding the use or dissemination of material under the ACC Act (including ss 7, 12 and 59), are subject to the overriding and mandatory exercise of the s 25A powers to ensure the fairness of a potential trial.
The ACC Act deals with the risk to a fair trial posed by the derivative use of examination material, in respect of people who have been or may be charged with an offence, by controlling access to the examination and the information flowing from it. Any particular direction required in a particular case will of course depend upon the circumstances of the person to be examined. Where that person is a suspect who has been requested to participate in, and has refused, a cautioned [record of interview] with investigators, little imagination is required to discern the appropriate application of the requirements of s 25A to protect the fairness of the potential trial(s) of those suspects. Investigators and prosecutors must be precluded from access to the examination material.[26]

[26]Ibid [641]–[647] (emphasis in original, citations omitted).

Her Honour’s conclusion on the s 25A(9) issue was in these terms:

Section 25A(9) required Sage to make a non-publication direction if, not to do so, might prejudice the fair trial of [the respondents]. In deciding the scope and content of such a direction, Sage should have adopted a careful approach, reflecting the purpose for which the duty to make such a direction was imposed.
Instead, Sage made non-publication orders which would have the effect of completely undermining [the respondents’] right to a fair trial. Sage’s asserted practice of automatically allowing dissemination to prosecuting authorities (for them to use to prosecute the examinee in relation to the very matters about which they had been compulsorily examined), does not justify his failure to have regard to the unambiguous requirements of s 25A(9). The fact that he could offer little explanation for why he allowed wholesale dissemination to all AFP investigators, other than that someone (presumably counsel assisting) must have asked him to, is an unacceptable explanation from an independent statutory office holder entrusted with extraordinary powers such as Sage had.
A decision to publish transcripts or documents, which should have been the subject of an appropriate direction, would be a decision beyond power. In fact, for the purposes of the stay application, the critical question is not whether the actual non-publication orders were unlawful and wrongful, but whether as a result of the investigators and prosecutors being armed with [the respondents’] evidence, there will be a miscarriage of justice if a stay is not granted.[27]

[27]Ibid [708]–[710] (emphasis added).

We deal first with the submissions of the CDPP and the ACC which contend that her Honour misconstrued s 25A(9). That will require reference to the substantial body of authority which has developed since the time of these examinations, which her Honour analysed with great care.[28] As will appear, we respectfully agree with her Honour’s conclusions on the construction and application of s 25A(9). We then deal separately with the challenge to her Honour’s finding that Mr Sage was ‘reckless as to his various obligations to an unacceptable degree’.[29] That will require consideration of the state of the authorities as at the time of the examinations.
[28]Ibid [144]–[242]. See Reasons [108]–[143] for her Honour’s exposition of the law as it had developed up to the last examination of the respondents.
[29]Ibid [881].

The submissions

The Director’s primary contention in oral argument was that, on the proper construction of the provisions of the Act, the phrase ‘might … prejudice the fair trial’ in s 25A(9) should be read as having no application to the derivative use of examination material by investigators or prosecutors. According to the submission, Parliament’s intention was that all such derivative use should be permitted. Accordingly, the non-publication duty in s 25A(9) was simply not engaged in respect of dissemination to investigators and prosecutors.

The Director relied on the fact that, while the Act provided a direct use immunity in respect of examination material, there was no immunity against derivative use of such material.[30] Derivative use of examination material should therefore be seen as one of the purposes of the Act. Accordingly, the Director submitted:

It would render the legislation absurd and unworkable to construe the ACC Act to permit investigation and allow derivative use of compelled answers but to preclude knowledge of the answers to investigators who have the statutory role to investigate relevant Federal offences. … In respect to a person uncharged, the mere fact that the witness’s evidence may be used to derive evidence admissible against the witness is not a basis under s 25A to preclude its dissemination to investigators. It is the statutory purpose that the coercively obtained evidence may give rise to derivative use.[31]

[30]See especially X7 [1] (2013) 248 CLR 92, 106–108 [16]–[20], 122 [52] (French CJ and Crennan J) for the legislative history of the Act.

[31]Emphasis added.

The Director’s written submission took a more qualified position, however. Instead of contending that disclosure for derivative use was always permissible (because it fell outside the intended scope of s 25A(9)), the written submission contended that the risk of prejudice had to be assessed on a case by case basis. Moreover, relying on the minority judgment of French CJ and Crennan J in X7 [1], the CDPP contended that the derivative use of examination material by investigators and prosecutors could be reconciled with the requirements of a fair trial, at least in some circumstances.

According to the submission:

Whatever are the bounds of permissible derivative use, the use of coerced evidence to acquire evidence which does not depend upon the coerced evidence for its probative value is within the class of permissible derivative use. Such things as bank accounts, documents, contemporaneous business records, real evidence such as a weapon or other item used in an offence, not dependent for their probative value upon the evidence of the person examined, are permissible derivative use product.

In short, it was submitted, ‘unless there is an apparent basis for the examiner to consider that publication might result in an unfair trial’, the evidence could be made available to the AFP for derivative use.

The ACC supported both the CDPP’s primary position — that all derivative use was permitted — and the more qualified position, namely, that the decision whether or not to permit dissemination to investigators and prosecutors would require a ‘qualitative analysis’ of the potential impact of disclosure on the fair trial of the examinee (if he/she were subsequently charged). As with the Director, the Commission’s complaint was directed at what was said to be her Honour’s unqualified conclusion that the Act did not permit any derivative use by investigators and prosecutors in connection with ‘a person who may be charged’.

The ACC submission also emphasised what were said to be the very significant implications of her Honour’s interpretation for the work of the Commission. The Commission argued that the construction adopted by her Honour

would negate the Commission’s ability to use, or enable other law enforcement agencies to use, precisely the kind of information it has been empowered, in the public interest, to collect, from the very persons who are likely to have that information, and who may be the only persons who do. This would frustrate the statutory objective of identifying and responding to serious criminality.
…
With respect to the many examinees who ‘may be charged’ within the meaning of [s 25A(9)], a very broad interpretation of the notion of potential prejudice to their trials will render the Commission’s examination powers concerning serious criminality and matters of high public interest largely ineffectual. If the requisite prejudice is said to arise simply on disclosure of the examinee’s evidence to any person involved in an ongoing investigation or prosecution concerning their conduct, the utility of the Commission’s examination power is greatly diminished or rendered nugatory.

For their part, the respondents submitted that the language of s 25A(9) justified the conclusion which her Honour reached. Particular attention was drawn to the phrase ‘might prejudice the fair trial’. In the case of a person ‘who may be charged’, it was said:

the legislature has required the Examiner to protect the putative accused in the prospective or potential trial by making the ‘quarantining’ directions authorised and required by s 25A.

The submissions of both the Director and the Commission drew heavily on the 2013 decision of the New South Wales Court of Criminal Appeal in Seller [2].[32] That decision, and the course of events which preceded it, are instructive in a number of respects.
[32]R v Seller; R v McCarthy (2013) 232 A Crim R 249 (‘Seller [2]’).

The decision in Seller [2]

Two accused were facing trial on charges of tax fraud. The charges resulted from a joint investigation by the ACC and the Australian Taxation Office (‘ATO’). In the course of that investigation, but before any charges were laid, each of them had been compulsorily examined by the ACC. After charges were laid, they both applied for a permanent stay. The application succeeded at first instance but the stay was set aside on appeal.

The examinations were conducted in 2007. In each case, it appears, Mr Sage was the ACC examiner.[33] In each case, he had made a direction under s 25A(9) prohibiting publication of the examination transcript to the CDPP.[34] We note that, in relation to the first of these directions, the judge hearing the stay application commented that Mr Sage had made the direction ‘no doubt, because he thought it was necessary so as to ensure a fair trial’.[35]
[33]R vSeller; R v McCarthy (2012) 232 A Crim R 146, 151 [32], 157 [64] (‘Seller [1]’).
[34]Ibid 153 [42]–[45], 158 [71].
[35]Ibid 187 [246].

In each case, a delegate of the CEO of the ACC subsequently purported to vary the non-publication direction (under s 25A(10)) to permit publication of the transcripts to the CDPP.[36] As to one of these variations, the judge said:

It seems that the CEO’s delegate acted on the view that since derivative use of the material was permissible, dissemination to the CDPP was lawful and hence could not prejudice the fair trial of Mr Seller.[37]

As already noted, that was the primary position adopted by the Director and the Commission on the present application.

[36]Ibid 154 [51], 158 [73].

[37]Ibid 188 [250].

The judge concluded that, because dissemination to the CDPP ‘was likely to impact adversely on a fair trial’ for each examinee, it was not authorised by the Act.[38] His Honour concluded, moreover, that there should be a permanent stay of the criminal proceedings:

I am satisfied that this is a matter where the Court ought to grant a stay of the proceedings. The Crime Commission issued summonses for the compulsory examination of the applicants, in the express contemplation of specific charges – they were nominated in the summonses. The applicants were entitled to have the contents of their examination, in which they were obliged to forego their privilege against self-incrimination, and which contained evidence relevant to their defence, kept confidential from the prosecution so that their right [to] a fair trial was ensured.
The conduct of the Crime Commission, in conjunction with the CDPP has deprived them of the protection which the law ensured. Any trial would not be fair or in accordance with the adversarial process.
It is not appropriate for this Court to permit a trial of their offences in all of the circumstances because it would be an offence to the administration of justice for the applicants to be confronted by prosecution authorities who have had access to material ordinarily caught by the privilege against self-incrimination, but which has been compulsorily obtained.
The undoubted and strong public interest in the prosecution of these criminal allegations, and the proof and punishment of their crimes, does not outweigh the public interest in the due administration of justice.
When added to the consideration of the private interests of the applicants in having their own entitlement to a fair trial in accordance with the adversarial process being ensured, the balance in favour of an order staying the proceedings falls strongly on their side.[39]

[38]Ibid 187–8 [248]–[252].

[39]Ibid 189 [257]–[261].

On appeal by the CDPP, the New South Wales Criminal Court of Appeal set aside the stay order. Bathurst CJ (with whom McClellan CJ at CL and Rothman J agreed) wrote the leading judgment, from which it is necessary to quote at some length:

The question remains whether the amendment to s 30, which had the effect of abrogating the privilege against indirect incrimination, leads to the conclusion that a fair trial for the purpose of s 25A of the Act could not be compromised by the disclosure of direct or indirect incriminating material to prosecuting authorities. In these circumstances the question is whether the only protection to which an accused or potential accused is entitled is that, at least in the case of answers given and in respect of some documents, the material would not be admissible in evidence. The Crown argued this was the effect of the amendment, at least when the material was disseminated prior to a charge being brought.
I do not agree. Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments: Commissioner of Stamps (SA) v Telegraph Investment Company Pty Ltd(1995) 184 CLR 453 at 463; Pearce and Geddes, Statutory Interpretation in Australia (7th ed, LexisNexis, 2011) at [7.23]. However, it does not seem to me that the amendment to s 30 compels a conclusion that s 25A(9) has no application in the case of dissemination of self-incriminating material to prosecutorial authorities.
As I indicated, the legislation as originally enacted contained two safeguards, the first in the original s 30 and the second in s 25A. As was said in OK at [109], the object of s 25A was to preserve a statutory safeguard to the right to a fair trial. If it was intended that the amending legislation was to take away that right, such an intention in my opinion, would need to have been clearly expressed: Potter at 304.
That does not mean that s 25A would prohibit all derivative use of the material. So, for example, I do not believe a fair trial generally will be prejudiced by the use of information obtained during the course of an examination to obtain admissible evidence. Thus, answers which would tend to indicate the availability of admissible evidence could properly be used for this purpose. For example, in cases such as the present this may include the location of bank accounts. Further, it does not seem to me that the use by the prosecution of documents produced during the course of an examination which supported the Crown case, usually would compromise a fair trial. However, the question of whether derivative use of such material could have that effect will always depend on the material in question and the circumstances of its use.
…
The position is different in my opinion if the provision of the material in question discloses defences or explanations of transactions by the accused which he or she may raise at a trial, and possibly evidence or information which would tend to show that documents or transactions apparently regular on their face in fact tend to support the proposed charges. This would be contrary to the principles stated by Gibbs CJ in Sorby, and by Deane, Dawson and Gaudron JJ in Caltex, that the onus is on the Crown to prove its case and that the prosecution must prove it without reliance on incriminating answers. To provide to prosecutorial authorities material compulsorily obtained relating to such matters could compromise a fair trial in accordance with these principles.
As McClellan CJ at CL pointed out in CB at [111], the principles are the same whether the material is provided before or after charge. The risk to a fair trial as envisaged by ss 25A(9) and (11) is the same irrespective of when charges are brought. In the case of pre-charge dissemination the risk will only materialise when charges are in fact brought. That does not mean that courts may not take a different approach in assessing what, if any, relief should be given if the dissemination is pre or post-charge. It is simply to say that the statute itself looks in each case to possible prejudice to a fair trial, and the requirement of a direction does not differentiate between pre and post-charge dissemination.
Two matters must be emphasised. First, it is impossible to state generally the nature and type of dissemination which might prejudice a fair trial. It will depend in all cases on the nature of the material to be disseminated, the function of the person or body to whom the material is to be disseminated and in some cases the timing of the dissemination. Second and importantly, ss 25A(9) and (11) of the Act are directed to the question of whether the material might prejudice a fair trial. Any relief given as a result of dissemination contrary to a direction or in circumstances where a direction should have been given, would depend upon whether in fact the dissemination has compromised the accused’s rights to a fair trial and what steps are necessary to alleviate the position. I do not understand McClellan CJ at CL to be saying anything different in [111] and [128] of his judgment in CB. In particular, I do not understand him to say that in all cases where information relating to a defence is furnished to prosecutorial authorities, a stay should be granted. If that is what his Honour was saying, I would respectfully disagree.[40]

[40]Seller [2] (2013) 232 A Crim R 249, 278 [99]–[102], [104]–[106] (emphasis added).

Bathurst CJ agreed with the trial judge that, in the circumstances of the case, there was a risk of prejudice to the fair trial of each of the examinees and, accordingly, a direction was required under s 25A(9) prohibiting the dissemination to the CDPP.[41] As his Honour pointed out, however, the stay question turned on whether such prejudice had in fact occurred. In the Chief Justice’s view, the trial judge had not considered that question. Moreover, there was no evidence

to justify his conclusion that the trial would suffer from a fundamental defect as a result of the delivery of the transcripts to the CDPP. Further, there is no evidence to suggest use will be made of the transcripts in the future. In these circumstances the delivery of the material to the CDPP and the finding by the primary judge that one or more of certain officers may have read the transcripts does not justify a permanent stay.
…
I should add that it would not be appropriate for the CDPP to make any use of the transcripts in the future conduct of this case. If I were of the opinion that there was a threat that this would occur, I would have made the setting aside of the stay subject to an undertaking by the Director that no further use would be made of them. However, in the circumstances, I do not consider this to be necessary.[42]

[41]Ibid 280 [112].

[42]Ibid 280 [114], 281 [117].

Several important points emerge from this analysis. First, the Court of Criminal Appeal firmly rejected the primary argument advanced by the Director and the Commission before this Court. We respectfully agree with the reasons which Bathurst CJ gave for that conclusion. In the circumstances, it is surprising that the argument was renewed on this application.

Secondly, while the risk of prejudice suffices to make the non-publication direction necessary, a stay will not be granted unless the applicant can show that the failure to make such a direction — or the revocation, or breach, of such a direction once made — has caused actual prejudice, such that a fair trial cannot be had. The New South Wales Court of Criminal Appeal reaffirmed this proposition in 2014, in X7 [2].[43]
[43](2014) 246 A Crim R 402, 423 [108]–[109].

Thirdly, whether or not such prejudice is established depends on both the extent of the dissemination and the nature of the derivative use made. Seller [2] established definitively that s 25A(9) was not intended either to confer a blanket authorisation on examiners to disseminate examination material to investigators and prosecutors, or to create a blanket prohibition on such dissemination and derivative use.

Fourthly, s 25A(9) does not differentiate between pre- and post-charge dissemination. As the Chief Justice said, the statute itself ‘looks in each case to possible prejudice to a fair trial’.[44] Importantly for present purposes, the High Court refused special leave to appeal from the decision of the Court of Criminal Appeal in Seller [2].[45]
[44]Seller [2] (2013) 232 A Crim R 249, 279 [105].
[45]Transcript of proceedings, Seller v The Queen; McCarthy v The Queen [2013] HCA Trans 204 (6 September 2013).

For completeness, reference should be made to a subsequent decision of that Court in respect of the same criminal proceedings.[46] (This decision — Seller [3] — was handed down in April 2015. In the meantime, the important High Court decisions in X7 [1], Lee [1],[47] and Lee [2][48] had been handed down.) The two accused applied to the trial judge for an order preventing a witness from the ATO from giving evidence at their trials. The officer (Mr Tang) had been on secondment from the ATO to the ACC at the time when Seller and McCarthy were examined and had either been present for their examinations or else had had access to the transcripts. The judge made the order sought.
[46]R v McCarthy; R v McCarthy (2015) 89 NSWLR 155 (‘Seller [3]’).
[47]Lee v New South Wales Crime Commission (2013) 251 CLR 196 (‘Lee [1]’).
[48]Lee v The Queen (2014) 253 CLR 455 (‘Lee [2]’).

The CDPP’s appeal was dismissed. The Court (Bathurst CJ, with whom Fullerton and Bellew JJ agreed) noted that the ATO officer’s evidence would be ‘the vehicle through which a good deal of the prosecution’s documentary case will be led and explained’.[49] His Honour said:

If it was open to the primary judge to conclude that [the officer] was assisted in this task by having the examination transcripts and the compulsorily acquired material in his possession, then it was in my opinion open to the judge to conclude that his giving evidence would alter the accusatorial process in the sense described in [X7 [1]] and [Lee [2]].[50]
[49]Seller [3] (2015) 89 NSWLR 155, 177 [115].
[50]Ibid 177 [115]. See also ibid 178 [123].

The decision in Lee [2]

The decision of the High Court in Lee [2] is of particular importance to the question of construction of s 25A(9). That case concerned the provisions of the New South Wales Crime Commission Act 1985 (NSW) (the ‘NSWCC Act’), s 13(9) of which was in relevantly identical terms to s 25A(9) of the Act. The Court emphasised the protective purpose of s 13(9) as follows:

The NSWCC Act provided extraordinary powers to the Commission to compel the giving of evidence by a person against the person’s interest and which might incriminate the person. These powers were provided in order that the Commission could more effectively investigate serious and organised crime. But the NSWCC Act also provided safeguards. Section 13(9) obliged the Commission to make a direction prohibiting publication of evidence before it, if not to do so might prejudice the person’s fair trial. If there was a risk of prejudice, s 13(9) required a direction to be made. Whether such a risk existed was a question to be assessed objectively. In considering that question, the Commission would be expected to adopt a careful approach reflecting the protective purpose for which the duty to make such a direction was imposed on it. A decision, inconsistent with that duty or purpose, to publish transcripts or documents which were, or should have been, the subject of such a direction would not be a decision which the Commission was empowered by the Act to make.
The making of a direction under s 13(9) was not the first, or the only, occasion on which the Commission was required to consider the possible effects of a compulsory examination on a person’s trial. Section 13(5) required that the Commission determine who should (and, it would follow, who should not) be present at the private hearing. It could set at nought the protection afforded by s 13(9) if persons associated with the possible prosecution of the person giving evidence were present.[51]

[51]Lee [2] (2014) 253 CLR 455, 465–6 [28]–[29] (emphasis added).

The particular relevance of Lee [2] is that it concerned — as does the present case — the compulsory examination of persons who had not been charged but in respect of whom charges were ‘anticipated’.[52] A non-publication order was made in respect of one examinee but not the other. Both were subsequently charged and their examination transcripts were provided to the Director of Public Prosecutions, at the Director’s request, ‘in order that the DPP could ascertain any defences the appellants might raise’ in their criminal trials.
[52]Ibid 459 [6].

The High Court held that the decision to publish the transcripts was made ‘without regard to the protective purpose of s 13(9) [and] was not authorised by the NSWCC Act’.[53] Moreover, the Court held, the publication to the Director of Public Prosecutions ‘was for a patently improper purpose, namely, the ascertainment of the appellants’ defences’.[54] The Court said:

The purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who might be charged with offences. It supported the maintenance of the system of criminal justice referred to in X7 and the trial for which that system provides, in which the prosecution has a defined role and the accused does not. The protective purpose of s 13(9) would usually require that the Commission quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the Commission to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not met in the present case, with the consequence that the appellants’ trial differed in a fundamental respect from that which our criminal justice system seeks to provide.[55]
[53]Ibid 469 [39].
[54]Ibid.
[55]Ibid 467 [34].

Conclusion

As already indicated, the primary submission for the CDPP and the ACC must be rejected. As explained in Seller [2], it does not follow from the removal of derivative use immunity that all derivative use is therefore permitted and should be regarded as falling outside the scope of s 25A(9). Whether derivative use ‘might prejudice the fair trial of a person’ will depend on the circumstances of the case. The question must be assessed objectively, having regard to the information available to the examiner at the time, regarding the nature and status of any relevant police investigation and the nature of any proposed derivative use.

In the present case, as in Seller [2], the circumstances demanded that Mr Sage give a non-publication direction prohibiting dissemination of the examination material to the AFP and the CDPP. Her Honour was entirely correct so to hold. On the information provided to the ACC by the AFP, each of the respondents was a person against whom a substantial case had already been assembled. In each case, the preparation had already reached the point where AFP investigators considered it appropriate to invite the respondent to participate in a cautioned record of interview.[56] Moreover, the subject-matter of the examination concerned the very matters on which the likely charges were to be based.
[56]Reasons [518], [523], [525], [530].

On the basis of that information, no other conclusion was reasonably open but that dissemination of the examination material to investigators and prosecutors might prejudice the fair trial of the relevant respondent should he be subsequently charged. As senior counsel for the Commission acknowledged in argument, it was simply not practicable for the examiner to attempt to ascertain, or predict, the subsequent course of events in more detail. Having regard to the protective purpose of s 25A(9), it was essential that a ‘careful approach’ be taken.[57]
[57]Lee [2] (2014) 253 CLR 455, 465–6 [28].

It follows that the decisions which Mr Sage made under s 25A(9) were not authorised by the Act. That is, he failed in each instance to prohibit publication to investigators and prosecutors when the statutory duty imposed on him by s 25A(9) required him to do so.[58]
[58]Ibid.

We referred earlier to the Director’s contention (supported by the ACC) that the judge had misinterpreted s 25A(9) as prohibiting all derivative use of examination material. The following were given as examples:

Where that person is a suspect who has been requested to participate in, and has refused a cautioned ROI with investigators, little imagination is required to discern the appropriate application of the requirements of s 25A to protect the fairness of the potential trial(s) of those suspects. Investigators and prosecutors must be precluded from access to the examination material.
…
The provisions of the ACC Act, in particular s 25A, preclude any inference that the ACC Act permits any derivative use of self-incriminating evidence, in respect of a person who falls within the protective provisions.[59]

[59]Reasons [563], [645] (emphasis added, citations omitted). See further, Reasons [591], [598], [644]–[647], [842]–[843], [846], [851], [853], [855]–[856], [859], [864], [867]–[868], [876], [878], [881].

That contention must be rejected. As the respondents submitted, a careful reading of the judge’s reasons shows that her Honour did not so conclude, and that she well understood the statutory scheme created by the Act and the test set out in s 25A(9). Specifically, the respondents pointed to her Honour’s discussion of the decision in Seller [2] as demonstrating that her Honour did not proceed on the basis that all derivative use was prohibited. Thus, her Honour referred to Seller [2] as authority for the proposition that:

Section 25A does not prohibit all derivative use of the material. For example, a fair trial generally will not be prejudiced by the use of information obtained during the course of an examination in order to obtain admissible evidence (for example, to locate bank accounts).[60]
[60]Reasons [165(e)]. See further, Reasons [86], [95], [98], [143], [146], [161], [165], [244]–[246], [251]–[252], [558], [561]–[564], [596], [598], [644]–[647], [657]–[658], [855]–[856], [868], [869].

The meaning of ‘publish’

For completeness, we should note an additional argument which the CDPP raised for the first time in the course of the appeal hearing, following discussion of the judgment of Basten JA in SD v New South Wales Crime Commission.[61] The relevant passage was in these terms:

The investigation of criminal activity, if publicly revealed, may have the capacity to prejudice a person’s safety or reputation, or to prejudice the fairness of a trial consequent upon charges being laid. The Commission is given powers and, in circumstances identified in s 13(9), a duty to take steps to avoid publication of information where that might prejudice a person’s safety or reputation or fair trial.
The reference to prejudice to a fair trial is of some importance. In relation to known criminal activity, the successful end to a criminal investigation is likely to be the laying of charges with at least a possibility of a trial. A primary purpose of the 1985 Act is to enhance the likelihood of the laying of charges and the prosecution of such charges at trial. The primary purpose of the Commission is thus furthered by an appropriate non-publication order, but impaired by a restraint on disclosure to the police or prosecuting authorities. Thus, read in its statutory context, the purpose of s 13(9) is not to limit or prevent disclosure or dissemination of material for the purposes of investigation or prosecution, but to prevent any wider publication which would jeopardise those functions.[62]

[61](2013) 84 NSWLR 456 (‘SD’).

[62]Ibid 465 [28]–[29].

The Director argued that, for similar reasons, the word ‘publish’ in s 25A(9) should be read as having no application to ‘disclosure or dissemination … for the purposes of investigation or prosecution’. It is notable that, although the stay application occupied many sitting weeks between August 2014 and June 2015, no such submission was advanced at any time during the hearing of that application. Even where no question of further evidence arises, it may not be in the interests of justice to allow a new point to be raised on appeal if this would require the rehearing of a substantial matter otherwise argued at great length at first instance.[63] The stay application plainly satisfies that description.
[63]Cf Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1608 [51] (Gleeson CJ, McHugh and Gummow JJ).

In any event, we would reject the Director’s new argument. With respect to Basten JA, it would be contrary to both the language and the protective purpose of s 25A(9) to read down the word ‘publish’. As to the language, the word ‘publish’ in ordinary usage is apt to cover both small-scale and large-scale communication of material. The recognised protective purpose of s 25A(9), so clearly established by the course of decisions, requires that the word ‘publish’ be given its broadest scope. This conclusion is reinforced by the generality of the language in s 25A(9): ‘direct that [the material] must not be published except in such manner, and to such persons, as the examiner specifies’.

In SD, Basten JA relied on the fact that it was ‘a primary purpose’ of the NSW legislation to ‘enhance the likelihood’ of criminal convictions.[64] In the case of the ACC, by contrast, the securing of convictions is at best incidental to its statutory functions.[65] On that basis alone, the statutory schemes are distinguishable.
[64]SD (2013) 84 NSWLR 456, 465 [29].
[65]See ACC Act s 7C.

Finally, in Lee [2], the High Court referred to Basten JA’s judgment in SD, and noted that no issue concerning the meaning of the term ‘published’ in s 13(9) arose for consideration, because of the prosecution’s concession that the relevant publication was unlawful.[66] The Court nevertheless affirmed that disclosure to an investigator or prosecutor might put at risk the prospect of a fair trial.[67] As already noted, Mr Sage had in 2007 prohibited such disclosure, apparently for that very reason.[68]

Issue 2: was Mr Sage reckless?

[66]Lee [2] (2014) 253 CLR 455, 468 [35].

[67]Ibid 469 [39], 470 [44].

[68]See [43] above, referring to Seller [2].

Mr Sage’s statement identified the documents on which he had relied in deciding, in respect of each respondent, that it was ‘reasonable in all of the circumstances’ to issue a summons for examination. (Some of these documents are referred to below.)[69] He was cross-examined at some length by counsel for the respondents.
[69]See [180]–[184] below.

Counsel for Hodges and Galloway respectively explored the non-publication issue. Early in the cross-examination, Mr Sage was asked about a document entitled ‘ACC Coercive Examinations — Information for Investigators’. On the evidence, this document set out the position as agreed between the AFP and the ACC regarding the conduct of examinations at this time. The opening paragraphs of the document included the following statements:

The ACC will not examine a witness directly about their own criminal offending …
If a person is to be charged with a criminal offence or there is considered to be sufficient evidence to ground the laying of a criminal charge (prima facie), the ACC is unlikely to examine that witness.

Mr Sage confirmed that, as at April 2010, he regarded this document as reflecting his view of ‘the proper process’. Mr Sage was asked what course he would have taken if he had been told by police that a prospective examinee was likely to be charged with offences and that the conduct in question would be the subject of the examination. He responded that he would have asked three questions, namely, whether:

·the police intended to charge the person;
·a brief of evidence had been prepared; and
·the brief had been referred to the Director of Public Prosecutions.

If all of those questions were answered affirmatively, Mr Sage said, he would not have proceeded with the examination.

In the case of Hodges, Mr Sage discontinued the examination when he was informed that Hodges was likely to be charged. Having discharged Hodges, Sage nevertheless permitted disclosure of the examination material to the AFP and the CDPP.

He was then asked about the ACC’s policy on release of information obtained at an examination, the relevant part of which was in these terms:

When making a decision as to who may be permitted access to the evidence of the witness, the Examiner may consider a submission that all evidence that relates to the charges that the witness faces or is going to face, be excised from the transcript of the examination. The Examiner may then preclude from having access to the excised evidence of the witness all persons who are involved in the investigation or prosecution.
Counsel assisting also may make an application to an Examiner that the evidence of a witness not be published to a prosecuting authority.

Mr Sage was then asked if he was aware — from the policy, if not otherwise — of his obligation ‘not to release examinations to prosecuting authorities if [the] person [who had] been examined was likely to be charged.’ His response was as follows:

I didn’t understand that it extended back to a person likely to be charged. It’s a person charged and before the court is my understanding of the position.

Mr Sage was then referred specifically to s 25A(9). He confirmed that, as at the date of the non-publication direction, he knew that Hodges might be charged with an offence.

It was put to him that the release of the transcript of the examination to the prosecution might prejudice Hodges’ fair trial. Mr Sage responded as follows:

Well, back in 2010 the cases that have now been decided, OK through to X7, post-date these examinations and releasing the evidence to the DPP for the DPP to consider, I don’t know that there was a problem with that.[70]

And further:
Mr [Hodges] had not been charged and a brief, I was told, had not been prepared. Yes, there may have been, the AFP may have been proceeding towards a brief and referring it to the DPP, but at that point in time, I could not see an issue with making the transcript available to the DPP.[71]

[70]‘OK’ and ‘X7’ are references to the decisions OK v Australian Crime Commission (2009) 259 ALR 507 (‘OK [1]’), discussed at [92]–[93] below, and X7 [1].

[71]Emphasis added.

In relation to Galloway, Mr Sage said that the examination was lawful because Galloway had not been charged with any offence. He did not recall asking whether police intended to charge Galloway but said that ‘I do have a practice of asking counsel assisting is there any present intention to charge’.

Mr Sage was asked about his decision to allow six AFP investigators to be present for the examination. He said that he had not made any inquiries as to whether any of those AFP officers was involved in the investigation of possible offences by Galloway, or might be involved in charging him, although he did know that Galloway was a suspect.

In relation to the non-publication direction, Mr Sage said that his practice at that time was to permit disclosure to the CDPP ‘unless I was asked otherwise’. His explanation of the practice was that ‘at that point in time it predated the decision in Seller and McCarthy.’[72] He knew that there was a possibility that Galloway would be charged but considered that, because he had not in fact been charged, there was no unfairness to him in the examination material being disseminated to the AFP or the CDPP. When Mr Sage was asked whether he knew that he was obliged under s 25A(9) to make a non-publication direction in the case of a person who ‘may be charged’, the question was objected to and the issue postponed. It appears not to have been returned to.
[72]Referring to Seller [2] discussed at [42]–[53] above.

We have already pointed out that Mr Sage had, in 2007, prohibited publication to investigators and prosecutors of the examination material relating to Messrs Seller and McCarthy, even though neither of them had at that time been charged. He was not, however, cross-examined about the apparent contradiction between those decisions and his stated understanding that s 25A(9) did not apply to the respondents because they had not yet been charged.

For completeness, we should refer to the evidence of Mr Bonnici, who acted as counsel assisting Mr Sage in the examinations. Like Mr Sage, Mr Bonnici said that his understanding of s 25A(9) at the time was that it did not apply to ‘a person who may be charged’. His explanation was that derivative use was understood to be permitted. He said:

It was clear that there couldn’t be direct use. I don’t know that there was a clear understanding of [s 25A(9)] until later clarification by the courts.

When it was put to Mr Bonnici that he was simply ignoring the statutory words ‘a person who may be charged’, he responded:

Well, you can’t look at those words, with respect, in isolation, you’ve got to look at the overall statutory position, and what the law then said you could or couldn’t do, specifically no direct use, but indirect use. Now, at that time, we didn’t believe that giving information to the investigators or the prosecution might prejudice someone’s fair trial, because we understood it to be permissible indirect use. Now, since then, of course, the courts have shed more light on that, but we didn’t know that then.

Asked about the dissemination of the Hodges material, Mr Bonnici accepted that he was aware that Hodges might be charged:

but I didn’t believe at that time that disseminating to the Australian Federal Police and the Commonwealth DPP was impermissible. If I did, I wouldn’t have done it.

The judge’s findings

Her Honour made the following findings in relation to the issue of recklessness:

As discussed previously, by the time of the examination of each of [the respondents], it is clear that Sage was well aware that they were regarded by the AFP as suspects, and as persons who may be charged.
Sage also conceded that he did not turn his mind to, or make any enquiries as to, who the various AFP officers were, or what role they did or might play in relation to the investigation, arrest or prosecution of any of [the respondents]. There is no evidence that Sage did anything other than simply sign the authority documents that others had prepared for him.
The AFP officers who attended the examinations were all members of Operation [Thuja],[73] involved in the investigation of possible offending by [the respondents] and others. Some of them played particularly critical roles in the investigation, the laying of charges, and the subsequent prosecutions, including [Schwartz],[74] [Webb],[75] [Bensen][76] (the primary informant in relation to these charges), and [Singleton] (who was the informant at committal, in relation to some of the … charges).
Sage was well aware that the examinations were intended to further the investigation and prosecution of [the respondents]. He knew that, as part of that, the AFP wanted to have them locked in to their account on oath, for use against them in relation to a future prosecution. The very purpose of causing the examinees to make admissions would be nullified if the investigating police were excluded from examinations.
As discussed earlier in these reasons, in no case prior to the examinations of [the respondents] had a court suggested that it would be permissible for investigating officers to attend an ACC examination. The decisions in cases in which the examiner had permitted an investigator to be present at the ACC examination all post-date the examinations of [the respondents]. Even in those cases, there was only one investigator noted as present, each of whom seems to have been on secondment to the ACC when they attended the examination. Sage’s decision in this case, to allow more than half a dozen investigating AFP officers to attend each of the examinations, seems to have gone far beyond the contemplation of any other examiner or court. It happened without him turning his mind to the possible impact that might have on [the respondents’] right to a fair trial.
…
Asked by [Hodges’] counsel whether there was any reason for not telling [Hodges] about the presence of AFP officers at his examination, Sage replied:
No, it is my practice to conduct examinations in this manner and there are a number of reasons why I don’t provide a list but there is no reason why [Mr Hodges] couldn’t have known if I’d have been asked.
[73]A pseudonym.
[74]A pseudonym.
[75]A pseudonym.
[76]A pseudonym.

…
Section 25A(7) imposes a positive obligation on the examiner to inform a witness of the presence of people who are not members of ACC staff, not an obligation to tell the witness only if they happen to ask. Unless Sage or Bonnici disclosed that people could watch the examination from another place, there would be no reason for a witness to ask to see the list, as it would seem self-evident to the witness that the only persons ‘present’ were those in the room.
If the AFP officers were members of staff of the ACC, then there was no breach of s 25A(7). Even if there was such a breach, by virtue of s 25A(8) their presence at the examination would not be unlawful. Either way, Sage’s failure to disclose the presence of the AFP officers does not involve statutory illegality. But what happened in relation to Sage’s non-disclosure of the police presence is yet another demonstration of his reckless failure to turn his mind to his legal obligations, and his indifference to the rights of [the respondents].
Sage offered no satisfactory explanation for ignoring a provision of the Act which was clearly designed to protect examinees, particularly examinees who may be charged. He demonstrated an extraordinary approach to the protective provisions of ss 25A(3) and 25A(7), one which completely disregarded his obligations in terms of the protections available for a person being examined under the Act.
Sage’s answer to the question [referred to above] is typical of the attitude he frequently displayed, when asked about his conduct of the examinations. He would often refer to his ‘practice’, as if that were a legitimate substitute for turning his mind to his specific statutory obligations. Only a few minutes after giving that particular answer, in answer to a different question, he said ‘I can conduct an examination in a manner that I see fit to conduct it.’
Sage’s failure to inform [the respondents] deprived them of the opportunity to challenge the presence of the AFP officers who were investigating their conduct. Logan J emphasised in QAAB the right of a suspect to challenge the presence of an investigating official, even one who was a member of staff of the ACC.
I have been critical of Sage in respect of the circumstances in which the investigating AFP officers were permitted to be present at the examinations. Sage clearly failed to provide an opportunity to [the respondents] to make submissions as to their presence at the examinations. Even if his conduct did not breach s 25A(7), because the AFP officers were members of staff of the ACC, that is not to the point. The point is that [the respondents] were deprived of the opportunity to point out that the presence of the investigators would set at nought the non-publication direction that the ACC Act required. Sage’s action not only deprived [the respondents] of the opportunity to protect themselves, but also to point out the unlawfulness or inappropriateness of Sage’s own actions.
Allowing large numbers of AFP officers to secretly attend the examinations of people who the examiner knew to be suspects, was contrary to what any of the cases at the time would have countenanced. In so far as Sage was unaware of the roles the specific AFP officers each played in the investigation of possible offending by [the respondents], that is because he abstained from asking any relevant questions.
…
What dissemination occurred to the AFP and CDPP?
Before the first round of examinations had even begun, the AFP requested that orders be made allowing all examination material to be disclosed to the AFP and CDPP. Thereafter, the AFP and CDPP took numerous active steps to obtain examination material, including the following.

On the appeal, counsel for Mr Galloway referred to the judge’s finding that, following the examination of Galloway, AFP officer Singleton went and interviewed Mr Mitchell, the Corporate Services Manager of QRS Limited. Her Honour found that, having observed Galloway’s examination, Singleton

knew what [Galloway’s] defences were. He had an opportunity to tailor his questions, and decide which documents to show [Mitchell] and [his successor, Russell], using that knowledge.[235]

[235]Reasons [793]–[795].

With respect, there are several difficulties with this finding. First, Mr Mitchell was always going to be interviewed by the AFP, given his senior position at QRS Limited. Counsel for Mr Galloway properly conceded that this was so. Secondly, it was inevitable that senior officers at QRS Limited (including Mr Mitchell) would be asked, in detail, about the role played by Mr Galloway at the time. Thirdly, as the Director pointed out in her reply submission, Mr Mitchell’s successor, Mr Russell, had given Singleton more than 100 pages of his own notes and copy documents before Galloway was examined. There was, in short, nothing to show that Singleton’s presence at the Galloway examination had prompted him to make any inquiries which he would not have otherwise have made, or to ask questions which he would not otherwise have asked.

Although Mr Schwartz and Ms Webb had denied using the ACC material in preparing the brief of evidence for the CDPP, her Honour nonetheless inferred that it was highly probable that the AFP officers had used the information from the examinations ‘to generate further enquiries and target witnesses.’[236] Most of the officers who had filed statements for the voir dire were not cross-examined at all about this issue. As we have said, the respondents did not seek to establish that information was obtained during the examinations which assisted the prosecution. To the contrary, they were intent on showing that the case against them was well understood before the examinations commenced, and that what emerged in the examinations accorded with the prosecution case theory.
[236]Ibid [873].

An important related issue of fairness arises. That is, if this claim of forensic advantage was to be pursued, counsel were obliged to challenge each witness whose evidence was inconsistent with the claim that the examination material had been so used.[237] The failure to comply with that obligation created the risk of injustice to those witnesses and the prosecution. The absence of any challenge to those witnesses would also have had the effect of diminishing the judge’s capacity to assess the merits of the claim[238] of unfair use, to the extent that it was advanced by the respondents in closing submissions.[239]
[237]Browne v Dunn (1893) 6 VR 67.
[238]Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478, 788 [21].
[239]Curwen v Vanbreck Pty Ltd (2009) 26 VR 335, 349 [26]; R v Morrow (2009) 26 VR 526, 540 [50].

Put another way, before the respondents could have invited the judge to infer that the investigators had made improper derivative use of the information to assist their inquiries, it would have been necessary for them to put that proposition to the witnesses. Fairness required that the witnesses and the prosecution be afforded the opportunity to respond. And, once the proposition had been squarely put, the CDPP could have called evidence in order to rebut that assertion.

In the event, as we have said, no such proposition was ever put to the witnesses, and no such submission was advanced. The respondents’ case was a quite different one. The ‘suspects’ argument apart, they were concentrating on the intentional or reckless illegality said to have characterised the examination process. That was said to justify a stay by itself. At no stage did they seek to identify any practical forensic advantage, less still to establish the ‘impossibility’ of showing such advantage.

An illuminating exchange took place during final addresses before the judge. Counsel for Mr Strickland submitted that it would have been easier to ‘unscramble the egg’ if the investigators had looked at all of the documents before the respondents were examined. This was said to be so

because they’d know and they’d be able to say ‘We already had that material, we didn’t go and find that material on the basis of what your clients said at the ACC.’

The judge questioned the premise of the submission:
Are there instances of any of [the respondents] saying things and identifying documents that weren’t already known to the police, because my recollection was rather contrary, they had a brief fully prepared with all the documents that they wanted to ask your clients about.

Counsel responded: ‘Your Honour is right’.

As we have said, the Director’s appeal submission set out, at length and in detail, the ‘large volume of evidence and intelligence’ which the AFP had obtained in advance of the ACC examinations. None of the respondents challenged the accuracy of this compilation, or its significance to the case against them. Nor, we should point out, did the respondents dispute the Director’s contention that none of the documents in the prosecution brief depended for its probative effect on answers given in the examinations.

The Director further submitted (by reference to Seller [2]) that none of the answers given in the examinations

gave rise to evidence which tended to disclose a defence or explanation which [the respondents] may raise at trial or revealed that transactions apparently regular on their face in fact tend to support the prosecution case.

While the respondents characterised this as a ‘bold’ submission, they did not attempt to identify any evidence of the kind referred to.
Conclusion

The issue of forensic advantage not having been explored, and the AFP officers’ denials not having been challenged, her Honour was not in a position to doubt the veracity of the AFP officers’ evidence or to draw the inference which she did. Nor was any submission of that kind advanced by the respondents. For the reasons we have given, the evidence did not permit the inference that it was highly probable that, as a result of the examinations, the AFP had undertaken inquiries or targeted witnesses, resulting in the prosecution gaining a material forensic advantage. Assuming that the investigators did make some use of the information obtained, there was no evidence as to the extent or importance of that use to the prosecution case and — hence — no foundation for a conclusion that its use was productive of such unfairness as to warrant a stay of the trial.

For these reasons, in our respectful view, it was not open to her Honour to conclude that the applicants had established any unfair consequences on this branch of their forensic disadvantage argument. We would uphold grounds 3, 4 and 5. We turn now to consider the other branch, concerning the constraining of forensic choices.

Forensic disadvantage: constraining forensic choices

The judge said:

The prosecution case relies upon inferring from a selection of documents that the relevant conspiracy existed and each [respondent] was a party. In ordinary circumstances, [the respondents] could have challenged the proposition that the only inference to be drawn from the documents presented was one of guilt, by asserting that those documents were a biased, random, or incomplete selection from among the millions of documents available to the prosecution. However, in this case, the selection of documents was influenced by the investigators’ knowledge of things said by [the respondents] during their examinations. That fact prevents their counsel from testing before a jury the basis upon which the documents were selected, or suggesting that the documents as selected fail to reveal the true facts.
I accept that this is a deprivation of a forensic choice to all of [the respondents] (including, possibly, [Galloway]). It may not be as substantial a deprivation as the matters discussed earlier, but it is a deprivation nonetheless.[240]

[240]Reasons [818]–[819].

Further, on the issue of forensic disadvantage, the judge concluded:

In the case of [Hodges], [Tucker] and [Strickland], the practical effect of each of their examinations has been to constrain their legitimate forensic choices in the conduct of the trials, by reason of the answers they were compelled to give on oath in their examinations. They have also been constrained in their ability to test before a jury the basis on which the documents in the prosecution brief have been selected.[241]

[241]Ibid [870].

In relation to Hodges, the judge made the following finding:

[redacted]

Her Honour reached similar conclusions in relation to Tucker.[242]

[242]Ibid [733].

In relation to Strickland, her Honour said his forensic choices were constrained for the same reasons as Hodges and Tucker. Examples given included the inability to argue or call evidence that would refute particular allegations, or to suggest an alternative explanation.[243]
[243]Ibid [739]–[740].

In relation to Galloway, her Honour said:

The account given in [Galloway’s] examination was largely exculpatory. However, it is the requirement to give answers, not the answers themselves, which has fundamentally altered his right to an accusatorial trial and to remain silent.
As with the other [respondents], by that questioning, [Galloway] has suffered the forensic disadvantage of being denied his fundamental right to defend the charges only on the basis of putting the prosecution to its proof and testing the strength of the prosecution evidence.[244]

[244]Ibid [747]–[748].

[Redacted]

The appeal submissions

The submission for the Director on the appeal was that there was no, or no sufficient, forensic disadvantage in this respect either. That is, the disclosure of the examination material to investigators and prosecutors would not unfairly constrain the forensic choices open to the respondents at trial. Any such constraint could be cured by the introduction of a fresh prosecution team and, as necessary, by judicial direction.

For reasons which follow, we would uphold that submission. Once again, however, it is necessary to address a threshold argument advanced by counsel for the respondents. The argument rested on what was said by Hayne and Bell JJ (with whom Kiefel J agreed) in X7 [1], as follows:

Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.[245]

[245](2013) 248 CLR 92, 142–3 [124].

According to the submission, the fact that a prospective defendant is compelled to respond to the prosecution’s case against him/her constitutes sufficient disadvantage in itself to justify a stay of proceedings. The vice is in the obligation to respond, it was said, whether the answers are inculpatory or exculpatory. Once the response has been compelled, counsel submitted, it is unnecessary to identify any particular practical constraint on the forensic choices to be made at trial. On this view, as counsel confirmed, it was unnecessary for the judge to make the findings which she made, as to particular constraints applicable to particular respondents.

The primary argument for the respondents, therefore, was that the compulsory examinations constituted ‘a clear subversion of the accusatorial process’. On this view, it was unnecessary for the respondents to show any actual curtailment of their forensic choices. And the disadvantage thus suffered was incurable.

In our view, this submission must be rejected. As senior counsel for the Director pointed out, the careful analysis by Bathurst CJ in X7 [2] demonstrates, again, that actual unfairness must be demonstrated if a stay application is to succeed. After setting out the passage from X7 [1] now relied on, his Honour pointed out that in giving that judgment Hayne and Bell JJ had

emphasised that their conclusion did not depend on stated or unstated assumptions of how a balance should be struck between individuals’ rights, privileges and immunities and societal demands for the detection and punishment of crime. Those questions, however, are relevant in considering whether it is appropriate to grant a permanent stay.[246]

[246]X7 [2] (2014) 246 A Crim R 402, 423 [106].

His Honour went on:

In considering the question of a stay I do not think that the reasoning of the majority in Lee (2013) can be ignored. Gageler and Keane JJ at [323] stated that the deprivation of a legitimate forensic choice available to a person may be one of the ways that unfairness amounting to an interference with the due course of justice could arise in a particular case. The reference to a particular case in my opinion is not inconsistent with the views expressed by the other members of the majority in Lee (2013) or what was said in X7 [No 1]. Rather, it emphasises the fact that the conduct of the examination may have different consequences depending on its nature and extent in any given case.
In these circumstances, it does not seem to me that either the decision in X7 [No 1] or in Lee (2014) compels the conclusion that the fact of an unauthorised examination, on its own, requires an order that there be a permanent stay of criminal proceedings relating to the matters the subject of the examination. To grant a stay in such a case would be to grant one without regard to the nature and extent of the unfairness which results. It would also fail to take into account the interests of the community in the prosecution of serious criminal offences.[247]
[247]Ibid 423 [108]–[109].

Specific constraints on forensic choice

Turning then to specific constraints, the Director challenged the judge’s finding that the respondents had lost the ability to test the basis upon which documents were selected for the prosecution brief.[248] The Director’s submission was that, except in exceptional circumstances, the basis of selection of documents was not relevant to any fact in issue. According to the written submission:

The relevance of documents in the case made against the respondents arises from the contents of the document and its connection with other documents and facts before the jury in the usual way. The provenance of the document may be relevant, but not the police reason for selecting it. No respondent argued that at trial they would seek to test the basis upon which police selected any document or class of documents. In any event relevance requirements will apply as in any trial. If such an occasion arose, it is open to the trial judge to make relevant directions as to the examination or exclude the document, to avoid unfairness.

[248]Reasons [818]–[819].

For their part, the respondents contended that the Director here ‘misstated the point’. According to their written submission:

The issue here is that where a case is based upon a relatively small selection of documents from a massive collection (30 or 40 million, according to [Schwartz]) it would be open to the defence to contend, and ask questions of relevant police directed towards establishing that the documents produced before the jury are selective, based on a particular case theory and that there may be other relevant documents open to innocent interpretation that have simply been overlooked or not included.
The problem that arises is that if so questioned the relevant AFP Officers, in particular [Schwartz], would give evidence that the selection of documents was assisted by evidence given … at ACC examinations. Such evidence of course would be highly prejudicial and in all likelihood those acting for [the respondents] would be acute in avoiding introducing such evidence. The forensic disadvantage is therefore suffered, as explained by her Honour.[249]

[249]The reference is to Reasons [818].

This submission must be rejected, for reasons closely related to those already given. Put simply, the respondents had every opportunity on the application before the judge to ask questions of the relevant AFP officers about how, and why, particular documents were selected. Not only would taking this course have carried no forensic risk but it would have enabled the respondents to test whether the examination material had in fact given investigators any practical advantage.

As we have pointed out, none of the respondents adopted this course before the judge. The obvious inference to be drawn is that they saw no forensic benefit in doing so. They were well aware, as their appeal submission acknowledged, that at the time of the examinations the AFP already had

a solid base of evidentiary material … sufficient for them to regard [the respondents] as ‘suspects’.

Moreover, as they had sought to demonstrate in cross-examination, the examinations themselves had confirmed the cogency of the prosecution case theory, which had been developed on the basis of the documents already assembled.

The Director similarly challenged the judge’s finding, in relation to Hodges, that

the capacity of his counsel to test the strength of the prosecution case, in a manner consistent with the evidence he gave on oath, is severely … curtailed.[250]

Senior counsel for the Director emphasised that the prosecution case against the respondents was based almost entirely on documents, the probative value of which was unaffected by the answers given in the examinations. Nothing said at an examination would inhibit counsel for a respondent in challenging the construction which the prosecution sought to place on particular documents.

[250]Ibid [726].

The respondents did not directly take issue with this submission. Rather, as we have said, they maintained that it was unnecessary to identify particular forensic constraints. They nevertheless sought to support the judge’s finding that each of them had

suffered the forensic disadvantage of being denied his fundamental right to defend the charges only on the basis of putting the prosecution to its proof and testing the strength of the prosecution evidence.[251]

[251]Ibid [748].

For the reasons already given, we respectfully disagree with her Honour’s conclusion. The respondents simply failed to demonstrate that what had occurred at or subsequent to the examinations would inhibit them in any way from putting the prosecution to its proof or testing the strength of the evidence.

Counsel for the Director accepted that, if a respondent had made an incriminating admission during the examination, this would prevent him from adopting a contrary position at trial, either through his counsel or in giving evidence. The submission, however, was that this could not be regarded as an unfair constraint, given that the Court must proceed on the assumption that an examinee would give truthful instructions to his counsel who, in turn, would be ethically obliged to conduct the defence consistently with those instructions.

Quite properly, in our view, senior counsel for the respondents conceded that this would be so. Counsel emphasised that the respondents did not base any of their arguments ‘on the notion that people should be allowed to cheat by lying to their counsel or by counsel and client conspiring to commit the very serious offence of pervert the course of justice’. That concession accords with the view expressed by Gageler and Keane JJ in Lee [1], as follows:

we are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination. The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring that the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt.[252]

[252](2013) 251 CLR 196, 316 [323] (citations omitted).

In the circumstances, we need not address the question debated in argument, namely, whether the above passage represents the law in Australia. (As set out above, the trial judge concluded that their Honours’ ‘obiter observations do not appear’ to have found favour with the other judges in that case, or in subsequent cases).[253] It is sufficient for present purposes to note that what their Honours said has already been cited with approval by this Court, in comparable circumstances, in Zhao v Commissioner of the Australian Federal Police.[254]
[253]Reasons [766].
[254](2014) 43 VR 187, 204 [48] (‘Zhao’). (This issue did not arise on the appeal to the High Court: Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46.)

In our view, the respondents failed to establish any relevant unfairness on the second limb of their forensic disadvantage case. With great respect, it was not open to her Honour to come to a contrary conclusion.

If, contrary to our view, particular lines of cross-examination of the investigating AFP officers might be impeded — for example, because an investigator needed to explain that he had not conducted a particular inquiry or search because of what was said in an ACC examination — that circumstance is capable of management by the trial judge. Those investigators who give evidence can be instructed that they will not be permitted to explain their actions by reference to what they learned (or believed they had learned) from the ACC examinations. As was submitted by the Director:

Whilst no occasion was identified by her Honour in this case, if a document or evidence of a witness was influenced by the answers in [one of the ACC examinations], or the ability to challenge such would require disclosure of the examination, the trial judge could deal with the matter by excluding the evidence, or via other appropriate directions, and avoid a permanent stay.

A new prosecution team?

During the course of the stay application, counsel for the CDPP told the judge that it was the prosecution’s intention to replace the prosecution team, following the conclusion of the stay application, with a team from whom all knowledge of what was said in the ACC examinations was quarantined. That position was confirmed by the Director in this Court. Moreover, it was submitted that any prejudice that the respondents might occasion from the fact of having given evidence in the ACC examinations could be ameliorated by orders prohibiting those with knowledge of what was said in the ACC examinations from disclosing that knowledge to the new prosecution team or at all.

The judge rejected the proposition that replacing the prosecution team would be sufficient to ensure that the respondents received a fair trial. Her Honour said:

However, in the peculiar circumstances of this case, I am not persuaded that severing the head of the prosecution team will be sufficient to ensure that [the respondents] can receive a fair trial. Information obtained from the examinations has been used to compile the prosecution brief and obtain evidence against [the respondents], in circumstances where the AFP had no entitlement to obtain such information, and would not have been able to do so had Sage exercised his extraordinary powers[255] appropriately. Further, the numerous investigators who were privy to the examinations will continue to be involved by giving evidence, liaising with witnesses, and suggesting avenues of examination and tactical decisions to be made at trial.
Short of creating a new investigative team and conducting a new investigation, it appears all but impossible to ensure that sufficient quarantining occurs to mitigate the permeation of examination information into the prosecution case.[256]

[255]For ‘extraordinary powers’, one might substitute ‘statutory powers’.

[256]Reasons [876]–[877].

In Lee [2], the Court held that what had occurred in that case altered the trial in a fundamental respect, ‘because it altered the position of the prosecution vis-à-vis the accused.’[257] It was ordered that the ‘convictions be quashed and that, for the purpose of the retrial, the prosecutor should be replaced by another prosecutor who was not aware of the contents of the accused’s evidence.’[258]
[257](2014) 253 CLR 455, 473 [51].
[258]Zhao (2014) 43 VR 187, 205 [51], citing Lee[2] (2014) 243 CLR 455, 470–1 [44], 473 [52].

For the reasons we have given, this case is of a quite different character from that with which the High Court was dealing in Lee [2]. The corollary of our conclusions on forensic disadvantage is that a change of the prosecution team is not a necessary condition of the respondents’ receiving a fair trial. Nevertheless, we think that implementing the Director’s proposal to change the team will have the salutary benefit of ensuring that their trials are prosecuted by counsel wholly unaware of what took place in the examinations.

Alternative basis: abuse of process

As noted earlier, her Honour concluded that a stay was also necessary ‘in order to protect confidence in the administration of justice’.[259] Her Honour’s conclusion in that regard must be understood in the light of her Honour’s finding of recklessness, which immediately preceded it:

Although I am not able to conclude that Sage acted in deliberate disregard of his statutory obligations, for the reason given earlier I am satisfied he was reckless as to his various obligations to an unacceptable degree. Had he exercised his powers independently, and with appropriate diligence, those responsible for investigating [the respondents] and preparing the brief would never have received the information which they in fact obtained.
Sage succumbed to the insidious danger that Harper JA warned of in the context of compulsory examination powers in Major Examiner v Brown:
Such officials may have an acute appreciation of the valid reasons why power has been conferred upon them. A similarly acute appreciation of the proper limits of that power is not so readily grasped, because the prospect and actuality of the exercise of power itself tends to dull the imaginative appreciation of its true purpose, and of the effects of its misuse or misapplication … Officials such as the Chief Examiner …, being trustees of powers conferred upon them by the public through Parliament, have a duty to be diffident in their exercise.[260]

[259]Reasons [883].

[260]Ibid [881]–[882].

At first instance, the respondents had submitted that it was

an abuse of the extraordinary powers of the ACC to examine people who were suspected of the crimes about which they were to be questioned. It would be a particularly grave abuse if that were done with the intention of using the information garnered thereby to assist in the prosecution of those examined. The powers granted to the ACC are extraordinary. They have … the capacity to fundamentally alter any criminal trial of a person examined.
If the powers of the ACC were deliberately abused by investigators, that would call for the clearest denunciation by the Court.
Impropriety by the executive prior to a criminal trial may require a stay of a criminal trial, regardless of whether that trial will be fair.

The respondents relied for this purpose on the decision of the High Court in Moti. The Court there ordered a permanent stay of the appellant’s trial because the Commonwealth had facilitated his unlawful deportation, knowing it to be unlawful. Although any unfairness in the trial could have been prevented, a stay was required to protect the integrity and fairness of the court’s processes and, hence, public confidence in the administration of justice.[261]
[261]Moti (2011) 245 CLR 456, 478 [57].

The respondents also relied on the following statement of Gaudron J in Ridgeway:

But what is more important is that the administration of justice is inevitably brought into question, and public confidence in the courts is necessarily diminished, where the illegal actions of law enforcement agents culminate in the prosecution of an offence which results from their own criminal acts. Public confidence could not be maintained if, in those circumstances, the courts were to allow themselves to be used to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf.[262]

[262]Ridgeway (1994) 184 CLR 19, 77.

In their written submissions on the appeal, the respondents maintained that, if the criminal proceedings against them were allowed to proceed, the court would be allowing itself

to be used to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf.[263]

They sought to characterise the present case as involving conduct by the ACC ‘in reckless disregard’ of their rights to a fair trial, and the dissemination of the examination material as having been ‘due to the reckless illegal conduct of the executive’.

[263]Emphasis altered.

In oral argument, however, counsel for the respondents did little more than confirm their reliance on this ground in the alternative. It was simply submitted, without elaboration, that her Honour would have been justified in granting the stay even in the absence of any demonstrated forensic disadvantage.

This submission must be rejected. For the reasons given in Part I of this judgment, the finding of recklessness cannot stand. Neither her Honour’s finding of unlawfulness, nor the additional grounds of unlawfulness upheld by this Court (including improper purpose), could suffice to bring this case into the exceptional category where a stay is necessary, absent unfairness, in order to preserve public confidence in the administration of justice.

We have concluded that the examination power was used for the improper purpose of assisting the AFP in its criminal investigation. We do not, however, accept that this circumstance differentiates the present case from other stay cases involving illegality or impropriety in the conduct of ACC examinations or the dissemination of examination material. That submission was advanced by the respondents before the judge, and was upheld by her Honour,[264] but it was not maintained on this application.

CONCLUSION

[264]Reasons [880].

The setting aside of the judge’s findings of recklessness and of incurable forensic disadvantage means that the twin bases of the stay order fall away. The discretion being reopened, we would refuse the stay applications. Accordingly, we would grant the applicant leave to appeal, allow the appeal, set aside the judge’s orders and, in their place, order that the stay applications be refused.

The steps we have identified will ensure (if any doubt remains) that the respondents receive a fair trial; the replacement of the prosecution team; the enjoining of the investigators from disclosing the contents of the ACC examinations to the prosecutors, or at all; and the trial judge’s ability to prohibit the Crown from leading evidence, and to prohibit certain matters being referred to by investigators in their cross-examination, if to do so would be productive of unfairness to the respondents.

As was said by Brennan J (as his Honour then was) in Jago, ‘[o]bstacles in the way of a fair trial are often encountered in administering criminal justice.’[265] His Honour then said:
[265](1989) 168 CLR 23, 47.

Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.
…
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge’s responsibilities are heavy but they are not discharged by abdication of the court’s duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.[266]
[266]Ibid 47–9.

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SCHEDULE OF PARTIES

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Applicant

DONALD GALLOWAY (a pseudonym) First Respondent

and

TONY STRICKLAND (a pseudonym) Second Respondent

and

EDMOND HODGES (a pseudonym) Third Respondent

and

RICK TUCKER (a pseudonym) Fourth Respondent

and

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION Intervener

SCHEDULE OF AUTHORITIES

Authority	Short title
A v Boulton (2004) 204 ALR 598	Boulton [1]
A v Boulton (2004) 135 FCR 420	Boulton [2]
ABC v Sage (2009) 175 FCR 319	ABC v Sage
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37
Australian Crime Commission v OK (2010) 185 FCR 258	OK [2]
Bartlett v The Queen (2012) 273 FLR 31
Bartlett v The Queen [No 6] (2013) 237 A Crim R 452	Bartlett
Browne v Dunn (1893) 6 VR 67
CC Auto Port Authority v Minister for Works (1965) 113 CLR 365
Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46
Curwen v Vanbreck Pty Ltd (2009) 26 VR 335
Director of Public Prosecution v Marijanevic (2011) 33 VR 440
Dupas v The Queen (2010) 241 CLR 237
GG v Australian Crime Commission (2010) 182 FCR 513	GG
R v Harper [2015] QCA 273
House v The King (1936) 55 CLR 499
Jago v District Court of New South Wales (1989) 168 CLR 23	Jago
Lee v New South Wales Crime Commission (2013) 251 CLR 196	Lee [1]
Lee v The Queen (2014) 253 CLR 455	Lee [2]
LHRC v Deputy Commissioner of Taxation (2015) 239 FCR 240
LHRC v Deputy Commissioner of Taxation [No 3] (2015) 148 ALD 32	LHRC
Minister for Families and Children v Certain Children [2016] VSCA 343
Moti v The Queen (2011) 245 CLR 456	Moti
National Crime Authority v A1 (1997) 75 FCR 274	A1
OK v Australian Crime Commission (2009) 259 ALR 507	OK [1]
R v Morrow (2009) 26 VR 526
R v Seller; R v McCarthy (2012) 232 A Crim R 146	Seller [1]
R v Seller; R v McCarthy (2013) 232 A Crim R 249	Seller [2]
R v Seller; R v McCarthy (2015) 89 NSWLR 155	Seller [3]
Re McTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264
Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478
Ridgeway v The Queen (1994) 184 CLR 19	Ridgeway
Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 56 ALJR 678	Samrein
SD v New South Wales Crime Commission (2013) NSWLR 456	SD
Thompson v Council of Municipality of Randwick (1950) 81 CLR 87	Thompson
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598
X7 v Australian Crime Commission (2013) 248 CLR 92	X7 [1]
X7 v The Queen (2014) 246 A Crim R 402	X7 [2]
XCIV v Australian Crime Commission (2015) 234 FCR 274	XCIV
Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 187	Zhao

[2017] VSCA 120

25 May 2017