Director of Public Prosecutions (SA) v Jaunay & Anor

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v JAUNAY & ANOR
[2020] SASCFC 25
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Parker)
22 April 2020
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
MAGISTRATES - GENERALLY - STAY OF PROCEEDINGS AND ABUSE OF PROCESS
Appeal against an order of a Magistrate permanently staying the prosecution of the respondents.
The respondents allegedly assaulted a youth late one evening in Whyalla. A Magistrate stayed the prosecution on the grounds that, in the course of investigating a complaint made by the youth’s mother, officers of the Internal Investigation Service of SA Police (the IIS) had unlawfully required the respondents to provide sworn accounts of the incident, which the IIS then unlawfully used to assist its enquiries and again, unlawfully, provided to the Director of Public Prosecutions (the Director). The IIS investigation was conducted jointly with the Independent Commissioner Against Corruption (ICAC).
The appellant appeals on the basis that the Magistrate erred in ordering a stay in circumstances where:
1. The affidavits were obtained lawfully.
2. The provision of the affidavits from the IIS to ICAC (and ultimately to the Director) was not unlawful.
3. Any unfairness to the accused could be resolved by either exclusion of the evidence and/or the allocation of a new prosecution team.
4. If any infraction occurred, allowing the proceedings to run their course would not be likely to bring the administration of justice into disrepute.
5. There was a particularly strong public interest in the matter proceeding.
6. The delay was not established to have caused any prejudice to the defendants.
Held per Kourakis CJ (Kelly and Parker JJ agreeing), allowing the appeal on all grounds and dismissing the respondents’ Notice of Contention:
1. There was no illegality connected with the investigation or prosecution of the offences and no ground on which the proceedings should be stayed.
2. There is strong public interest in the prosecution of offences generally and in deterring abuse by officers of SA Police of their positions of authority.
3. The order made by the Magistrate permanently staying the prosecution of the respondents is set aside.
Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) ss 4, 13, 14, 15, 16, 19, 21, 23, 25, 26, 28, 31, 32, 33, 34, 48; Independent Commissioner Against Corruption Act 2012 (SA) ss 7, 13, 15, 16, 20, 34, 36, 50, 51; Controlled Substances Act 1984 (SA); Police Act 1998 (SA) ss 4, 6; Police Regulations 2014 (SA) regs 6, 10, 88, sch 3; Criminal Law Consolidation Act 1935 (SA) ss 20, 242; Director of Public Prosecutions Act 1991 (SA) ss 7, 11; Royal Commission Act 1917 (SA) s 16, referred to.
Lee v The Queen (2014) 253 CLR 455; R v Seller (2015) 89 NSWLR 155; Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 93 ALJR 1, discussed.
Grech v Bird (1936) 56 CLR 228; Commissioner of Police v Justin (1991) 55 SASR 547, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v JAUNAY & ANOR
[2020] SASCFC 25
Full Court: Kourakis CJ, Kelly and Parker JJ

KOURAKIS CJ: This is an appeal against an order made in the Magistrates Court permanently staying the prosecution of the respondents, two police officers, Senior Constable Jaunay (SC Jaunay) and Constable Hobbs, for assaulting a youth, Mathew Odgers (Mathew), late one evening on Panter Street, Whyalla. A Magistrate stayed the prosecution on the grounds that, in the course of investigating a complaint made by Mathew’s mother, officers of the Internal Investigation Service of SA Police (the IIS) had unlawfully required the respondents to provide sworn accounts of the incident, which the IIS then unlawfully used to assist its enquiries and, again unlawfully, provided to the Director of Public Prosecutions (the Director).
The IIS investigation was conducted jointly with the Independent Commissioner Against Corruption (ICAC or the ICAC Commissioner). On appeal, the respondents contend that that cooperation was also unlawful and constitutes an additional ground on which to stay the prosecution.
Policing Panter Street, Whyalla
In the evening of 25 October 2013, Mathew was walking along the footpath of Panter Street, Whyalla. He was then aged 17. Three police officers were also on Panter Street in an unmarked police car. They thought that Mathew looked ‘furtive’, and suspected that he was walking towards the house of a known drug dealer. They alighted from the car and accused Mathew of attempting to source drugs. At their request, Mathew emptied his pockets and produced a ‘cone piece’. SC Jaunay began preparing a drug diversion notice. Mathew telephoned his mother asking when she would pick him up. Mathew then asked SC Jaunay when he could leave and was told that he could do so only when SC Jaunay allowed him to.[1] By this time, Mathew’s friend Reece Bartel (Reece) had walked up to where Mathew and the police were standing. An aggressive verbal exchange ensued between Reece and Mathew on the one hand and the police officers on the other. Reece walked away when the officers told him to move on. Mathew alleged that SC Jaunay then struck him with an open palm on the left cheek, knocking him to the ground. When his mother rang, the police allowed Mathew to answer and he asked her to hurry up and pick him up. He was then pushed to the ground by another officer who held him around his throat. When Mathew’s mother arrived, SC Jaunay asked her to stay in the car until he finished speaking to Mathew. According to Mathew, SC Jaunay then warned him against telling his mother that he had been hit in these words:
You can tell your mum we hit you but we will say we didn’t and if you do you’ll find out we are big liars cause we will say we didn’t.
[1] I have omitted from this narrative abusive language allegedly used by SC Jaunay.
SC Jaunay also spoke of hunting Mathew down. It is alleged that unbeknown to SC Jaunay, his warning, and implied admission, was recorded by Mathew on his mobile phone. The voice file was later sent to his mother, Maria Odgers (Maria), and another person. An audio recording of the conversation was extracted from Maria’s phone and the conversation was transcribed.
The complaint and initial investigation
On 25 October 2013, Maria complained about the way the police had treated Mathew to the Whyalla police station. Maria was able to identify two of the officers as SC Jaunay and Constable Hobbs from information she had obtained from the Whyalla police station. She was not able to identify the third officer. The third officer was later identified to be Constable Fergusson. On 12 November 2013, she made a complaint to the Police Complaints Authority.
On 30 December 2013, in accordance with the instructions given by the Police Ombudsman, Acting Inspector Walsh (Inspector Walsh) emailed the three police officers in identical terms as follows:
Can you please provide a signed affidavit in relation to this incident addressing all factors including as above. Can you also provide a copy of any documentation you submitted in relation to the incident including ancillary, notebook entries, drug diversion documents etc.
On 2 January 2014, all three officers provided their affidavits in sealed envelopes. As we shall see, SC Jaunay and Constable Hobbs denied that they assaulted Mathew but deposed that he threw himself to the ground whilst they were talking to him. On that day, Inspector Walsh obtained a statement from Mathew but without making reference to the contents of SC Jaunay’s affidavit.
A statement was also obtained from Reece. His statement, made to Inspector Walsh, claimed that a police officer whose description better fitted Constable Hobbs than SC Jaunay was the one who pushed Mathew to the ground. He told Inspector Walsh that he had not seen any of the other officers strike Mathew. In a subsequent interview, Reece told investigators that SC Jaunay was close to Mathew when he fell but that he did not see SC Jaunay make contact with Mathew.
SC Jaunay was interviewed on 26 November 2014, and after being cautioned, claimed that Mathew ‘leapt to the ground’ after SC Jaunay had done no more than point at him. SC Jaunay also affirmed the contents of his earlier affidavit, saying that it was ‘completely true’.
The prosecution
On 4 May 2017, SC Jaunay and Constable Hobbs were charged with aggravated assault and aggravated assault causing harm of Mathew, respectively.[2] The circumstance of aggravation was that they had ‘abused a position of authority in committing the offence’.
[2] Contrary to ss 20(3), (4) of the Criminal Law Consolidation Act 1935 (SA).
On 13 March 2018, SC Jaunay, and Constable Hobbs on 17 July 2018, sought orders that the prosecution be permanently stayed on the grounds which may be summarised as follows:
·Inspector Walsh had unlawfully directed them to provide statements in affidavit form when he was not authorised in law to do so or had otherwise procured the affidavits unlawfully.
·The affidavits were unlawfully communicated to potential prosecution witnesses and to the Director of Public Prosecutions contrary to s 48 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) (the PCDP Act).
·The delay in laying the charge.
The Magistrate found Inspector Walsh had invited, but not directed, SC Jaunay and Constable Hobbs to provide the affidavits. Nonetheless, his Honour stayed the prosecution on the ground that the affidavits were unfairly procured under compulsion because, under the PCDP Act, an exercise of the privilege against self-incrimination may be dealt with as a breach of discipline. The Magistrate also found that there was a risk that the affidavits were disseminated in a way which would make any trial forensically unfair. The Magistrate concluded that the only appropriate remedy, to avoid a potential miscarriage of justice, was to stay the prosecution.
The appeal and Notice of Contention
The Director appeals on, amongst others, the grounds that the Magistrate erred in ordering a stay in circumstances in which:
·the affidavits were lawfully obtained and distributed; and
·there were effective measures available to safeguard against a miscarriage of justice.
The Notice of Appeal and Notice of Contention are reproduced at Appendix A and Appendix B respectively.
The respondents submit, by way of Notice of Contention, that the Magistrate erred in finding that the email of Inspector Walsh was not a direction pursuant to s 25(5) of the PCDP Act, and that the direction he gave was unlawful because that subsection did not authorise a direction that information be provided by affidavit. They also contend that the direction was affected by illegality in that the Police Ombudsman had wrongly purported to direct the IIS, pursuant to s 26 of the PCDP Act, that they obtain the statements from SC Jaunay and Constable Hobbs by way of affidavit. They submit that the provision of the affidavits under compulsion ‘altered the accusatorial process for the investigation’ and had the effect of ‘limiting the Respondents in the conduct of their defences’. The Director denies those contentions.
The respondents also contend, and the Director denies, that the disclosure of their affidavits to ICAC contravened s 48 of the PCDP Act and was therefore unlawful. They contend that ICAC’s power to direct a joint investigation with the IIS pursuant to s 34 of the Independent Commissioner Against Corruption Act 2012 (SA) (the ICAC Act) did not empower the IIS to disclose to ICAC the information it held. In addition, they contend that ICAC and the IIS had no power to conduct a joint investigation consensually after the time‑limited direction given by ICAC had expired.
Finally, the respondents contend, and the Director denies, that the stay of proceedings was justified because the dissemination of the affidavits gave an unfair advantage to the IIS in its investigation, and to the Director in the prosecution of the respondents, which caused ‘ineradicable’ unfairness and brought the administration of justice into disrepute.
I would allow the appeal.
I would hold that Inspector Walsh requested, and did not direct, that SC Jaunay and Constable Hobbs provide affidavits. The disciplinary offence, created by s 25(10) of the PCDP Act, of declining to provide information on the ground of the privilege against self‑incrimination applies only to a refusal to provide information in response to a direction made pursuant to s 25(5) of the PCDP Act. There is no indication in the responses of SC Jaunay and Constable Hobbs that they misread Inspector Walsh’s email as a direction. SC Jaunay and Constable Hobbs gave no evidence, on the application before the Magistrate, that they so understood Inspector Walsh’s email, or that they would not have provided their affidavits but for a misunderstanding of that kind.
Section 48 of the PCDP Act does not prohibit the use of information obtained in the course of an investigation by the IIS for the purposes of that investigation. In particular, it does not preclude the IIS from disclosing the information to other police officers, or officers from other agencies, with whom they are jointly conducting an investigation. Section 48 of the PCDP Act does not prohibit IIS officers from disclosing information obtained from other sources in the course of the investigation when interviewing witnesses or interrogating police about their conduct. Nor does s 48 of the PCDP Act prohibit the disclosure by the Police Ombudsman, for whom the IIS conducts the investigation, of the information obtained and collated in the course of the investigation, to a prosecuting authority. The disclosure of that information is, by necessary implication, authorised by the Police Ombudsman’s statutory duty to report any findings of the commission of disciplinary proceedings, or an offence, to the Commissioner of Police.[3]
[3] PCDP Act s 33.
Section 34 of the ICAC Act empowers the ICAC Commissioner to require the police, including the IIS, to jointly conduct an investigation with the ICAC Commissioner. The ICAC Commissioner and the police are not prohibited from continuing voluntarily, and by mutual consent, an investigation under the ICAC Act which has been commenced by a notice issued pursuant to s 34 after the time specified in that notice has expired. Moreover, the disclosure of information obtained in the course of the investigation by IIS to the ICAC Commissioner is expressly permitted by s 50 of the ICAC Act. Disclosure by the ICAC Commissioner to a law enforcement agency, like SA Police, is authorised by s 36 of the ICAC Act.
I find, therefore, that there was no illegality connected with the investigation or prosecution of the offences, and no ground on which the proceedings should be stayed.
In the alternative, I would hold that even if the affidavits of SC Jaunay and Constable Hobbs were obtained unlawfully, the Magistrate erred in concluding that alternative measures would not have adequately protected them from unfairness in their trial.
I elaborate on my reasons below.
A slow investigation
It is necessary to set out the course of the IIS investigation, and the evidence it collected, in some detail so that the factual matrix, in which the questions of law on the appeal arise, can be fully understood.
As I earlier observed, Maria made her complaint to the Police Complaints Authority on 12 November 2013. The complaint was that on 25 October 2013 at 9:30 pm SC Jaunay, Constable Hobbs and another officer had acted unprofessionally and had assaulted Mathew. The complaint recorded that Maria had made a telephone complaint to the Whyalla police station at 9:55 pm and attended at the Whyalla police station on the next day. She complained that the police officers to whom she had spoken the night before, and at the police station in person, did not take her complaint seriously. Maria described the police response as ‘appalling’.
Maria alleged in her complaint that there was corroborative evidence of the assault, including photographs of bruising and cuts. She also alluded to ‘other undisclosed evidence that [she had] not submitted forward as yet’. Maria spoke of her son’s fear of leaving the house and that he was seeing a psychologist. She complained that the police had threatened to hunt her son down if he informed anyone of the assault, and that they had told him that they would lie if he did complain. Maria made the point that police officers ‘are suppose[d] to uphold the law. … [Our children] should look at the Police for safety and feel safe in their presence not be afraid’. She described the police officers’ conduct as an ‘unproffesional [sic] abuse of power’.
The Police Ombudsman made a report of the complaint to the Office for Public Integrity on 14 November 2013. The report was made pursuant to an obligation imposed by s 20(1) of the ICAC Act.
The Police Ombudsman informed the Commissioner of Police of the complaint by letter dated 22 November 2013 and requested a ‘preliminary investigation’. On 28 November 2013, a delegate of the Police Ombudsman directed the Acting Officer in Charge of the IIS, pursuant to s 26(4a) of the PCDP Act, to conduct an ‘initial inquiry’ with respect to the complaints and that a report of that initial inquiry be given to the Police Ombudsman pursuant to s 26(1)(b)(i) of the PCDP Act. The direction of 28 November 2013 identified the following five matters to be investigated:
1Whether the detention and search of Mathew by SC Jaunay, Constable Hobbs and a third unidentified officer on 25 October 2013 was conducted without reasonable suspicion.
2Whether the three officers threatened and verbally abused Mathew.
3Whether the three officers used more force than was reasonably necessary when dealing with Mathew.
4Whether on 25 October 2013 one or more unidentified designated officers failed to refer a complaint made by Maria, by the most expeditious means available, to the IIS.
5Whether on 26 October 2013 one or more unidentified designated officers failed to refer a complaint made by Maria to the IIS by the most expeditious means available.
Under the heading ‘Methods to be employed in the investigation’, the following investigative methods were specified:
·That a declaration be obtained from the complainant in statement form and that it be executed.
·That declaration statements be obtained from witnesses and be appropriately executed.
·That statements be obtained from the designated police officers, which were SC Jaunay, Constable Hobbs and an unidentified officer, and that the statements be in affidavit form and appropriately witnessed. The direction did not ask that the officers be given a criminal or conduct caution.
·That the officers’ notebooks be obtained and any audio or videotape be obtained.
·That the investigation may be conducted by either a member of the IIS or an LSA manager.
Under the heading ‘Other instructions’, the following appeared:
· Under s 25(5) of the Act investigating officers are authorised to direct designated officers to furnish information, to produce property, documents or other records, and to answer questions.
· Under s 25(7) of the Act investigating officers are required to advise any designated officer whom they direct to answer a question, furnish information, or produce property, documents or other records, of the particulars of the complaint under investigation.

I do not accept that the Police Ombudsman’s direction, properly construed, demanded that the IIS officers use their statutory powers in employing the methods set out in the direction. It is of some significance that the Police Ombudsman’s direction was for a preliminary, or initial, investigation. The template used by the Police Ombudsman for the directions she gives to the IIS categorises investigations as:
·initial inquiry;
·full investigation;
·full investigation – further investigation.
That taxonomy is not statutorily mandated for directions given by the Police Ombudsman but it does reflect her statutory power to undertake a ‘preliminary inquiry’.[4] Plainly enough, the purpose of a preliminary initial inquiry is to allow the Police Ombudsman to triage complaints.
[4] PCDP Act s 19.
The methodology prescribed by the direction of 28 November 2013 was that the IIS officers obtain declaration statements from the police officers. That direction is to be understood to specify the preferred form of statement for the purposes of the preliminary inquiry and a direction, therefore, that the IIS officers use their best efforts to obtain the statements in that form. That the Police Ombudsman preferred sworn statements to unsworn statements is not surprising. It provides the Police Ombudsman with a sound basis on which she may deal summarily with unmeritorious complaints.[5] Section 25(1) of the PCDP Act recognises that there may be further investigations. As we shall see, another direction was subsequently given to conduct a ‘full investigation’ in which SC Jaunay and Constable Hobbs were to be questioned under criminal caution.
[5] PCDP Act s 21.
In the 28 November 2013 direction, the Police Ombudsman did not direct the use of the statutory powers of the PCDP Act to obtain statements in affidavit form or at all. That is consistent with the conduct of a preliminary inquiry at a time when, until the police officers complained about have had an opportunity to respond, there is no reason to assume that there is merit in the complaint. The ‘Other instructions’ identified statutory powers available to the IIS but did not mandate their use generally, or for a particular purpose. Sworn statements may be obtained voluntarily and without any statutory compulsion. It remained a matter for the IIS officers whether or not to exercise their statutory powers if statements were not voluntarily given. As we shall see, SC Jaunay and Constable Hobbs gave their sworn statements voluntarily.
I would dismiss paragraph [1(ii)] of the respondents’ Notice of Contention because the Police Ombudsman did not give a direction requiring the IIS to exercise their statutory powers to obtain the statements of SC Jaunay and Constable Hobbs in affidavit form.
In December 2013, Mathew and Maria gave handwritten statements to the Police Ombudsman.
In an affidavit sworn on 4 April 2018, Inspector Walsh, who was not a member of the IIS but an Acting Operations Inspector for the Eyre and Western Local Service Area, deposed:
On the 30^th of December 2013, I sent an email request for a signed affidavit to be provided in relation to the above preliminary investigation to Senior Constable Andrew Jaunay, Constable Sean Hobbs and Constable Nicholas Fergusson. The email provided the particulars of the matter under investigation as required under Section 25 (7) of the Act. The emails were identical in detail other than who the email was addressed to (refer Annexure A). I also requested that the officers provide a copy of any documentation submitted including ancillary, notebook entries, drug diversion documents etc. This requirement for requesting the affidavit’s and other information was utilising Section 25(5) of the Act.
It will be observed that Inspector Walsh makes no reference to the powers exercisable under the PCDP Act in the email sent to SC Jaunay and Constables Hobbs and Fergusson, to which I earlier referred in part. The email reads in full:
I am investigation [sic] a police complaint in relation to your involvement in the stop and search of Odgers at Whyalla on the 25/10/2013.
The allegations are:
·    That the search lacked reasonable suspicion
·    Odgers was threatened and verbally abused
·    More force was used than reasonably necessary
Can you please provide a signed affidavit in relation to this incident addressing all factors including as above. Can you also provide a copy of any documentation you submitted in relation to the incident including ancillary, notebook entries, drug diversion documents etc.
Owing to various reasons this investigation needs to be done promptly and I ask that you have these prepared for me by 2/1/14 when I will be in Whyalla.
Thanks
Mick Walsh
Even though the introductory words of Inspector Walsh’s email state that he is investigating a police complaint, it is couched in terms of a polite request. As we shall see, s 25(5) of the PCDP Act provides that an IIS officer may ‘direct’ a police officer to furnish information. A direction given pursuant to s 25(5) of the PCDP Act is treated as a direction given by the Commissioner of Police.[6] That shows that some degree of formality, and mandatory terms, are necessary for a direction to fall within s 25(5) of the PCDP Act. The email does not use the terms ‘direct’ or ‘order’. It makes no reference to any statutory power nor to the consequences of a failure to comply. Furthermore, Inspector Walsh put his name at the foot of the email informally and without reference to his rank.
[6] PCDP Act s 25(6).
In the passage of Inspector Walsh’s affidavit set out above, he stated that he believed he was exercising the statutory powers available to him to require that statements in affidavit form be provided. That he held that belief is curious. It is inconsistent with the terms of his email which reflects what appears to have been a practice of conducting a preliminary inquiry. Inspector Walsh’s affidavit does not refer to any distinction between preliminary inquiries and full or further investigations.
In any event, whether or not Inspector Walsh was exercising the statutory power must be decided on the face of his email and not his subjective belief. In the ordinary course, it can be expected that police officers will voluntarily respond to a preliminary investigation of a complaint in order to rebut false or mistaken accusations made against them. There was no reason for Inspector Walsh to think otherwise in this case. The direction from the Police Ombudsman was clearly marked ‘initial inquiry’. Inspector Walsh had no reason to suspect that SC Jaunay and Constables Hobbs and Fergusson would not respond cooperatively or that they may be reluctant to swear to the truth of their accounts. There was, therefore, no reason for him to direct them to provide statements whether sworn or unsworn. Nor was there any reason why the officers would have thought he was doing so, given the terms in which his request was expressed.
The matter may be tested by considering whether, on a charge of a disciplinary offence for failing to comply, contrary to s 25(8) of the PCDP Act, Inspector Walsh’s email would be found to be a direction. It would not. SC Jaunay and Constable Hobbs could reasonably have taken the position that the email was merely a request and that they were not bound to respond. I acknowledge that, if they had failed to respond, the exercise of the statutory power to direct them to respond was likely, and that SC Jaunay and Constable Hobbs are likely to have known that. However, if that point had been reached, a direction which fell within the statutory power, and did not require the statement to be sworn, may have been given. It cannot be assumed that the direction would have required a sworn statement, and that, for that reason, Inspector Walsh’s invitation to provide sworn statements should be treated as if it were an unlawful direction to provide them.
I interpolate here that if the email were otherwise capable of operating as a direction pursuant to s 25(5) of the PCDP Act, the circumstance that it directed the provision of an affidavit, which is clearly beyond the power conferred, would not render the responses of SC Jaunay and Constable Hobbs voluntary. To the contrary, it would exacerbate the position because, under colour of a statutory power, Inspector Walsh would have directed more than he could lawfully command. To that extent, I accept the submission made in paragraphs [1(i)] and [2] of the Notice of Contention but, given my finding that Inspector Walsh’s email is not a direction, the point is of no consequence.
Be that as it may, I would affirm the Magistrate’s finding that Inspector Walsh’s email was not a statutory direction. It follows also that there was no direction requiring that their statements be in affidavit form. There was only an invitation to provide their statements in affidavit form. I would dismiss paragraph [4] of the respondents’ Notice of Contention.
On the same day that SC Jaunay received Inspector Walsh’s email, he responded that he would not be in Whyalla on 2 January but that he would leave the documents requested in an envelope in the Whyalla Operations Manager pigeonhole with a note saying ‘to be picked up on 2/1’. Inspector Walsh responded on the same day as follows:
Jauns,
Thanks – at this stage don’t need to speak with you on this one.
That informal exchange tends to confirm that neither Inspector Walsh nor SC Jaunay were labouring under the impression that the compulsive powers of s 25 of the PCDP Act were being exercised. Inspector Walsh’s response, ‘at this stage’, suggests that he was aware that the inquiry was a preliminary one.
SC Jaunay did provide the affidavit as he said he would. It was sworn on 30 December 2013. He described seeing Mathew on Panter Street looking ‘nervous and furtive’. He suspected Mathew of having committed an offence against the Controlled Substances Act 1984 (SA) because of ‘the time of night, the lack of other foot traffic, the intelligence known to police regarding a specific house in the street and [Mathew’s] behaviour’. SC Jaunay deposed that Constable Hobbs searched Mathew and found a cone piece. SC Jaunay then took over the arrest report because it was his ‘turn’. He told Mathew to calm down and to comply with directions and commenced preparing the drug diversion paperwork. SC Jaunay deposed that Reece then arrived and that his behaviour was ‘rude and indignant’. Reece was told to cease loitering. SC Jaunay allowed Mathew to call his mother. When Reece was about 50 to 60 metres away Mathew started to call out to him and swore in a loud voice. SC Jaunay pointed at Mathew and in a stern voice told him to settle down or he may be arrested. SC Jaunay then deposed:
… As soon as I pointed ODGERS threw himself backward onto the ground as though I had struck him. He began yelling toward BARTEL ‘They’re bashing me, come back.’ I saw BARTEL turn and begin to walk back. At this time I saw a vehicle pull up near to us. I said to ODGERS who had remained on the ground. ‘Is that Mum?’ He told me that it was.
SC Jaunay does not make any reference in his affidavit to Constable Hobbs taking Mathew by the shirt and walking him to the footpath. He does depose to Reece returning and telling Maria that the police had hit Mathew. SC Jaunay deposed that he told Maria that her son was ‘behaving badly and swearing’. According to SC Jaunay, Maria walked over to Mathew who also told her that he had hit him.
According to SC Jaunay, Maria then confronted him and asked, ‘Did you hit him?’ prompting SC Jaunay to respond, ‘I told you how he was acting. If you think I am assaulting youths in a public street you have rocks in your head.’
SC Jaunay deposed that he got back into the police vehicle and left. He completed the drug diversion paperwork. A copy of the Drug Diversion Referral Notice was provided to this Court by consent after judgement was reserved. It refers to Mathew walking towards a particular house on Panter Street known to be the home of a ‘known drug dealer’. It purports to have been completed by SC Jaunay and gives an account of his conversation with Maria in similar terms to his affidavit which, impliedly, denies assaulting Mathew in any way and makes no reference to any circumstance which would have justified him in doing so.
Constable Hobbs provided his statement on 1 January 2014. It was affirmed in the form of an affidavit commonly used in proceedings in the criminal jurisdiction of the Magistrates Court to provide witness statements, either in a summary prosecution or for the purposes of committal proceedings. This was also the form of SC Jaunay’s affidavit.
Constable Hobbs deposed that he was on plain clothes duties on 25 October 2013 at 9:30 pm with SC Jaunay and Constable Fergusson. He deposed that he saw a male, whom he recognised to be Mathew, crossing Panter Street. He suspected that Mathew was actively avoiding police because he crossed to the opposite side of the road on which the police car was stationary, had both hands in his front jumper pockets and avoided looking at police. He had dealt with Mathew in the previous weeks for serious criminal trespass and drug offences. The officers returned to the vehicle and stopped Mathew on the corner of Panter and Patten Street. Constable Hobbs ordered Mathew to empty his pockets because he was ‘fidgeting in his front pockets’. Mathew originally refused and was ‘very defiant against police’ but later pulled out a single cone piece which had a strong smell of cannabis. Constable Hobbs informed SC Jaunay who began to fill out a drug diversion notice. Constable Hobbs deposed that Mathew called his mother and asked her to pick him up. Whilst SC Jaunay was filling out the paperwork, Reece arrived and told them not to harass Mathew. Mathew then ‘became more abusive and smart, showing off in front of his friend’. He was continually told to stop walking away until the paperwork was complete. Reece was told to cease loitering.
Constable Hobbs’s affidavit continued:
… While I ensured BARTELL [sic] left the area I heard an exaggerated cry and turned to see ODGERS rolling on the footpath holding his forehead with JAUNAY was still standing behind the car. ODGERS was claiming he had been punched and began to shout to BARTEL to call for help because he was getting ‘bashed’.
Mathew started to walk away making another phone call but Constable Hobbs asked him not to. When Mathew ignored him Constable Hobbs grabbed his hand but Mathew then ‘collapsed his legs and slumped to the ground, limp’. Constable Hobbs deposed to then grabbing hold of his shirt and walking him to the footpath before seating him down.
In a statement given to Inspector Walsh for the purposes of the Police Ombudsman’s investigation and sworn on 2 January 2014, Mathew deposed that at 9:30 pm on 25 October 2013 he was walking on the footpath of Panter Street, intending to catch up with Reece before going home. He saw an unmarked charcoal grey Commodore drive up and stop next to him. He recognised one of the three plain clothes police officers. Two of the officers walked towards him whilst one stayed in the back seat. He was asked if he was on his way to source drugs. They asked him to empty his pockets and he produced a cone piece. One of the officers wrote out ‘a drug citation’. Mathew deposed that he was ‘compliant’. By then, Reece had arrived but was ‘hanging back’ until the police had finished. The officer in the back seat, whom Mathew described as bald, and whom he believed to be SC Jaunay, came out of the car. Mathew asked if he could leave and was told by SC Jaunay that he could only leave when he was given permission to do so. SC Jaunay told Reece to leave but Reece responded defiantly until SC Jaunay threatened to arrest him.
Mathew deposed that SC Jaunay then stood up close against him and hit him with an open palm on the left cheek, causing him to fall backwards onto the concrete, rolling over twice. Mathew called out to Reece that he had been assaulted. One or other of the remaining officers accused Mathew of being ‘a bit dramatic’ and said that he had not been hit ‘that hard’. At that time, Mathew’s mother rang him back and he asked her to hurry because he was being assaulted. An officer, whom Mathew believed to be Constable Hobbs, came up to him and grabbed his hand, causing the phone to fall. Constable Hobbs then took Mathew by the throat with both his hands and hit his head on the ground. Mathew could not breathe because the officer’s knee was on his chest. Constable Hobbs got off him when Mathew saw his mother’s car lights approach. Mathew remained on the ground with his legs crossed.
SC Jaunay then said to him, ‘You can tell your mum we hit you but we will say we didn’t and if you do you’ll find out we are big liars cause we will say we didn’t.’ SC Jaunay warned Mathew that if he complained SC Jaunay would hunt him down. At that time, Mathew saw Reece speaking to his mother who then approached him. Mathew told her that SC Jaunay had hit him. Maria asked SC Jaunay if that was so. SC Jaunay denied the allegation, saying:
Are you really going to believe that over a First Class Constable with 20 years’ service? If you believe that you’ve got rocks in your head.
Maria asked the police for their identity numbers. She was told that they were on the drug diversion form. As they were leaving, SC Jaunay addressed Mathew, saying, ‘I’ll be seeing you around Matt, don’t forget what I said. You’ve got a smart mouth.’
On 30 January 2014, the Police Ombudsman wrote to the Commissioner of Police setting out an extract from the transcript of the alleged recording of the conversation between SC Jaunay and Mathew. The Police Ombudsman sought a ‘full investigation’ of the matter. The Police Ombudsman directed that SC Jaunay and Constable Hobbs be interviewed under criminal caution.
On 4 February 2014, the ICAC Commissioner wrote to Maria informing her that he had decided that her complaint should be jointly investigated by ICAC and SA Police. On the same day, the ICAC Commissioner issued a notice to the Commissioner of Police pursuant to s 34 of the ICAC Act in which he required:
… South Australia Police to conduct a joint investigation with [him] in respect of a particular matter, namely:
allegations that on 25 October 2013 in Whyalla a police officer, while on duty and in the company of two other police officers, assaulted a youth Mathew Odgers.
The notice specified that it was operative ‘for the period commencing from the date of issue of this notice until 31 May 2014’. The notice required the investigation to commence on 17 February 2014. It was noted that the ‘anticipated duration of the joint investigation is four (4) months, ending on or about 31 May 2014’.
On the same day, the ICAC Commissioner issued a notice to the Police Ombudsman to refrain from taking any action in relation to the same investigation.
On 5 February 2014, the Commissioner of Police replied confirming receipt of the notice and informing the ICAC Commissioner that:
… In accordance with the Memorandum of Administrative Arrangement between us I have referred this matter to the Officer in Charge Anti‑Corruption Branch.
The Commissioner of Police also asked the ICAC Commissioner to note that the Officer in Charge of the Anti‑Corruption Branch had allocated the joint investigation to the Officer in Charge of the IIS and asked that all further correspondence be directed to Detective Senior Sergeant Phil Vincent (DSS Vincent) of the IIS. DSS Vincent assigned Detective Brevet Sergeant Craig Foster-Lynam (DBS Foster-Lynam) to the investigation. His supervisor, appointed by ICAC, was Senior Investigator Ann Schaefer (SI Schaefer).
SI Schaefer had been appointed in October 2013 by the ICAC Commissioner to be his delegate with respect to the functions and powers of ICAC pursuant to s 54 of the ICAC Act, [7] which allows the ICAC Commissioner to authorise the disclosure of information in relation to, or connected with, a matter that forms the subject of the complaint.
[7] Section 16 of the ICAC Act provides that the ICAC Commissioner may delegate his or her powers by an instrument in writing.

In an affidavit put before the Magistrate, SI Schaefer deposed that she was assigned to investigate the matter of Odgers in February 2014. On 17 February 2014, a meeting was held between officers of the IIS and ICAC and an investigation plan was agreed. It described the criminality to be investigated as:
Alleged criminal behaviour of police officers Jaunay, Hobbs and Fergusson with regards to the assaults and any offences committed by other police officers and refer it to the Office of Director of Public Prosecutions (ODPP).
It listed the offences to be investigated as follows:
Section 20 CLCA - Aggravated assault
Section 256 CLCA - Attempt to pervert the course of justice
Section 27 Oaths Act - False declaration
Numerous breaches of SAPOL Code of Conduct
The targets were identified as SC Jaunay, Constable Hobbs and Constable Fergusson.
On 19 February 2015, Mathew gave an unsworn statement to SI Schaefer. He informed her that he had pressed the record button on his mobile phone when the police started hitting and abusing him. He said that he later sent the audio recording to his brother’s phone and to his mother’s phone. He said that he had lost his phone in about October 2014.
In a record of interview, conducted by DBS Foster‑Lynam on 27 March 2014, Mathew confirmed that the cone piece was handed over to an officer other than SC Jaunay who wrote out the drug diversion notice. He said that it was SC Jaunay who came out of the car and who accused him of being a spoilt brat and threatened to strike him with his torch. Reece intervened and said that he could not do that. It was SC Jaunay who ‘palmed’ him across his left cheek. The blow knocked him from the gutter to the concrete pavement where he lay. Reece was a few metres away at the time. Mathew sat with his legs crossed. His mother called him and he answered the phone. While he was talking to his mother, SC Jaunay said, ‘Get that phone off him.’ It was then that the young ‘Aussie’ looking officer came at him and slammed him on the concrete. He took Mathew in a bear hug and then grabbed him by the throat. Mathew could not breathe. The officer sat on him with his knee on Mathew’s heart. Mathew’s phone fell out of his hand and was lying on the dirt.
On 19 May 2015, Mathew was shown three slideshows of photographs. Mathew was not able to identify Constable Fergusson from the slideshow that contained his photograph. Mathew did identify SC Jaunay, from a slideshow of photographs that included his photograph, as the police officer that was ‘the leader and in [his] face’ and the officer ‘that punched [him] when [he] fell to the ground’. Mathew identified Constable Hobbs, from a slideshow of photographs that included his photograph, as the police officer that ‘picked [him] up and slammed [him] to the ground when [he] was on the phone’.
Maria gave a sworn statement to Inspector Walsh on 3 January 2014 for the purposes of the Police Ombudsman’s investigation. She deposed that when she stopped behind the police car she was told by a police officer that he had to talk to Mathew again and he asked her not to get out of the car. She deposed that she believed the officer to be SC Jaunay and gave a description that matched him. Whilst waiting in the car, Reece approached her and told her that Mathew had been smacked around by the police. Maria spoke to SC Jaunay and said, ‘Apparently someone has been … assaulting my son.’ SC Jaunay responded, ‘If you believe that you must be crazy.’ According to Maria his tone was insulting.
Maria saw that Mathew had a mark on his face and cuts on his knee and that he had been crying and was shaken. Mathew stood up and accused SC Jaunay of hitting him. Reece agreed that he had been hit. SC Jaunay replied, ‘Phff, what would he know he was two hundred metres down the road.’ SC Jaunay also said, ‘If you think little boys on the street and hit them then you must have fucken rocks in your head.’[8] SC Jaunay told her that he had the right to use reasonable force. SC Jaunay told Maria that she could complain but made the point that he had been a police officer for 25 years. SC Jaunay swore when he was speaking to her. The two other officers did not become involved in the conversation.
[8] This quote has been reproduced as it appears in the statement.
On 19 February 2015, Maria made an unsworn statement to SI Schaefer. Maria stated that about two weeks after the incident Mathew had sent her the audio recording he had made of SC Jaunay warning him against making a complaint. She had forwarded that message to a friend, Johan Deakin, who formatted a copy to be sent to Inspector Walsh. She handed her phone to SI Schaefer that day. In a statement sworn 28 February 2018, Maria told an officer of ICAC that Mathew had left his telephone with a taxi driver as collateral for the fare. Maria attempted to retrieve her son’s phone but was not able to.
Reece gave a sworn statement to Inspector Walsh on 6 January 2014. He deposed that he saw Mathew speaking to three police officers and approached them. He heard the officers ask Mathew how he was going to get home before his curfew. Mathew phoned his mother. He heard Mathew speak rudely to his mother when telling her to hurry up because he only had 10 minutes before his curfew. An officer with a bald head became upset about the way in which Mathew had spoken to his mother and shone a torch in his face. That officer said to Mathew, ‘If you spoke to me like that I’d be doing something fucken about it. You’re lucky I don’t hit you with my torch.’ Reece responded, ‘You can’t do that.’ The officer then asked Reece to leave. He hesitated but another officer also told him to leave. Reece deposed that he walked down the road slowly, looking back as he went.
When about 20 metres away, Reece claimed he saw another officer, who was younger (mid-twenties), quite tall and fit with short black spikey hair and a tattoo on his arm, push Mathew to the side of the face with an open hand causing Mathew to fall to the ground. Mathew yelled out, ‘Did you see that?’
Reece deposed that the bald-headed officer and the other officer did not hit Mathew in his presence. He saw Mathew crying. He then saw Mathew’s mother approach in her car. Reece deposed that the bald-headed officer said to Mathew that he would be seeing him again.
Reece described the bald-headed officer as ‘45 years old, fit build, about [his] height and had a short greying beard’. The other officer had tanned skin, was about 25 years old with blue eyes and was shorter than the others.
Reece was interviewed by DBS Foster-Lynam and SI Schaefer on 27 March 2014. He described Mathew calling his mother and speaking aggressively to her. He said that it was then that a police officer said, ‘If that was you talking to me I’d smack you in the head or something.’ Reece said that he then walked up the road when asked to move on. He turned around because he heard Mathew scream and saw that he had ‘dropped’ but Reece was not sure ‘who got punched, slapped or whatever’. Reece told Maria that a police officer had hit Mathew. The other police officers were not saying anything. Reece then related the conversation between Maria and SC Jaunay which, to a large extent, matched the conversation as it was described by Mathew, Maria and SC Jaunay. However, Reece denied that he was ‘200 metres up the road’. Reece said that he ‘was just, just like a football kick away’. When questioned about seeing Mathew being struck, Reece answered as follows:
Q125.So they, when you first saw him he was talking to the cops. They’d stopped and they, they were talking and then when his hood came down you realised it was him.
AYeah so I quickly, ‘cause I had drinks on me as well and then I put them in the alley and walked back.
Q126.In the alley, yeah. And so did you actually, so did you see the bald headed guy hit him.
AYeah I’m not, I didn’t see him actually punch him but I seen him go like that and Matt like hit the floor.
Q127.Okay.
ALike nothing.
Q128.So he dropped pretty like, do you reckon he, was it real –
ANo, no way.
Q129.Did he just pretend to fall down or anything.
AHe didn’t, no he didn’t pretend at all.
Q130.Yeah. So he went down. You saw him go down.
AYeah, yep.
Decision to prosecute
An adjudication of the complaint against SC Jaunay and Constable Hobbs was sought by an officer of the IIS on 13 March 2015. A note on the SA Police forwarding minute received into evidence shows that Senior Sergeant Westover, an SA Police prosecutor, requested additional information to assist with his adjudication of which, if any, charges to lay against the police officers. He had been provided with a copy of a final report and evidence provided to the ICAC Commissioner, who had recommended criminal charges. The ICAC report was returned to SI Schaefer to address certain issues raised by Senior Sergeant Westover.
A note made on 2 July 2015 suggests that ICAC provided SA Police with the evidentiary material collected in the course of the joint IIS and ICAC investigation. There is no evidence that the material was provided by individual officers of the IIS acting independently of ICAC or the Police Ombudsman.
A note on the SAPOL forwarding minute made by DBS Foster‑Lynam shows that several matters, including the matter of Mathew Odgers, were investigated as a joint investigation. The note records that ICAC had requested that SAPOL proceed with criminal adjudication/prosecution.
On 21 September 2015, there is a note of advice that the file be provided by SA Police to the Director of Public Prosecutions.
As we have seen, and for reasons which are not explained, the Information charging SC Jaunay and Constable Hobbs with assaulting Mathew was not filed until 4 May 2017.
SA Police
Before turning to the particular statutory provisions on which the questions of illegality turn, it is necessary to understand the relationship between the IIS and the command structure of SA Police.
Section 4 of the Police Act 1998 (SA) (the Police Act) provides:
South Australian Police (in this Act referred to as SA Police) consists of—
(a) the Commissioner of Police; and
(b) the Deputy Commissioner of Police; and
(c) the Assistant Commissioners of Police; and
(d) the other officers and members (including community constables) appointed under Part 4.
Section 4 of the PCDP Act provides that it is in addition to, and does not derogate from, the ICAC Act and the Police Act.
Section 6 of the Police Act confers responsibility for the control and management of SA Police on the Commissioner of Police, subject to any written directions of the Minister.
Regulation 6 of the Police Regulations 2014 (SA) provides that when two or more police officers are engaged on duty together, the more junior officer, or an officer who by order is subject to the superintendence of another officer, must comply with the orders given by the most senior. Inspector Walsh was not on duty with SC Jaunay and Constable Hobbs when he invited them to provide affidavits and there is no evidence that he was, by order, responsible for the performance by them of a particular duty which extended to the provision of statements.
Section 13 of the PCDP Act requires the Commissioner of Police to constitute the IIS as a separate section of SA Police to carry out investigations under the PCDP Act. The officer in charge of the IIS is entitled to report directly to the Commissioner of Police on any matter relating to the IIS or the performance of its functions.[9]
[9] PCDP Act s 14.
From the above provisions, it is apparent that the IIS is constituted as a special section with a command structure under the direct supervision of the Commissioner of Police, because the function of its officers is to investigate their colleagues, and in order to ensure there is a standing section within SA Police committed, and with the resources, to conduct internal investigations.[10] Officers of the IIS are nonetheless police officers. They, therefore, have the same powers and are subject to the same duties and responsibilities as all police officers in the investigation and prosecution of offences.[11]
[10] PCDP Act ss 13-15.
[11] Police Regulations 2014 (SA) reg 10, reg 88, sch 3.
The PCDP Act
Section 16 of the PCDP Act provides for the making of a complaint about the conduct of a police officer to, amongst others, the Police Ombudsman.
Section 19 of the PCDP Act requires the Police Ombudsman to notify the Commissioner of Police when a complaint is made. The Police Ombudsman may refer a complaint to the Commissioner of Police, in which case it must be referred by the Commissioner of Police to the IIS for investigation. Alternatively, the Police Ombudsman may embark on his or her own investigation.[12] The Police Ombudsman may co-opt officers of the IIS in that investigation or, alternatively, exclude them and any other police officer from it.[13]
[12] PCDP Act s 23.
[13] PCDP Act s 23(3).
The powers which may be exercised by the IIS on a referral from the Police Ombudsman are conferred by s 25 of the PCDP Act:
25—Investigations by IIS
(1) Subject to any determination made by the Ombudsman under section 21, 22 or 23, or direction given by the Commissioner under section 22, each matter that is referred to the IIS under this Act for investigation or further investigation must be investigated or further investigated by the IIS.
(2)     An investigation or further investigation referred to in subsection (1) is to be conducted, subject to any directions of the Ombudsman or the Commissioner, in such manner as the officer in charge of the IIS thinks fit.
(3)     Subject to any directions of the Ombudsman or the Commissioner, a member of the IIS may, for the purposes of the investigation, make inquiries and obtain information, property, documents or other records relevant to the investigation, as he or she thinks fit.
…
(4)     Subsections (2) and (3) do not authorise a designated officer to contravene or fail to comply with a law that would, if those subsections had not been enacted, apply in relation to the investigation of a matter referred to the IIS, but nothing in this subsection affects the operation of any other provision of this section.
(5)     A member of the IIS may, for the purposes of the investigation, direct a designated officer to furnish information, produce property, a document or other record or answer a question, being information, property, a document or record or a question that is relevant to the investigation.
(6)     For the purposes of the Police Act 1998 or the Protective Security Act 2007, a direction given by a member of the IIS under subsection (5) has effect as if it had been given by the Commissioner.
(7)     A member of the IIS must, before giving any direction under subsection (5) to the designated officer whose conduct is under investigation, inform the officer of the particulars of the matter under investigation.
(8)     A designated officer who—
(a)without reasonable excuse, refuses or fails to furnish information, produce property, a document or other record or answer a question when so required under this section; or
(b)furnishes information or makes a statement to a member of the IIS knowing that it is false or misleading in a material particular,
may be dealt with under the Police Act 1998 or Protective Security Act 2007 (as the case requires) for breach of discipline.
…
(9)     Where a designated officer is directed under subsection (5) to furnish information, produce property, a document or record or answer a question, the officer is not excused from complying with the direction on the ground—
(a)that the furnishing of the information, the production of the property, the document or record or the answering of the question—
(i)would be contrary to the public interest; or
(ii)would contravene the provisions of any other enactment; or
(b)that the information, the property, the document or record or the answer to the question might tend to show that he or she has committed a breach of discipline.
(10)   A designated officer may refuse to furnish information, produce property, a document or record or answer a question if the information, the property, the document or record or the answer to the question might tend to incriminate him or her or a close relative of his or hers, but any such refusal may be dealt with under the Police Act 1998 or Protective Security Act 2007 (as the case requires) as a breach of discipline.
It is common ground between the parties, and I accept, that s 25(5) of the PCDP Act does not extend to a direction that the information furnished be sworn. A power to require an oath to be taken must be expressly conferred.[14] If it were otherwise, an officer of the IIS could expose a designated officer to the penal consequences for perjury, [15] and not just the disciplinary offence which is the only sanction for non-compliance imposed by s 25.
[14] Grech v Bird (1936) 56 CLR 228.
[15] Criminal Law Consolidation Act 1935 (SA) s 242; Evidence (Affidavits) Act 1928 (SA) s 4.
By deeming a direction given by the IIS pursuant to s 25(5) of the PCDP Act to be a direction of the Commissioner of Police, an unreasonable refusal to respond is properly made a disciplinary offence by s 25(8) of the PCDP Act because it is a refusal to comply with the authority conferred on the Commissioner of Police by s 6 of the Police Act.However, whatever the police disciplinary consequence, s 25(5) of the PCDP Act also imposes an obligation in law to comply with such a direction. In some circumstances, that obligation may be enforceable by a court.
Section 25(9) of the PCDP Act makes it clear that the civil penalty privilege is not a reasonable excuse for the purposes of s 25(8) of the PCDP Act, and is not otherwise an exception from any duty imposed by sub‑s (5). It follows that a statement made by a designated officer will generally be admissible in disciplinary proceedings because the privilege against self‑implication in a disciplinary offence has been abrogated.
On the other hand, s 25(10) of the PCDP Act provides that a designated officer may refuse to furnish information on the grounds of self‑incrimination, but will nonetheless also be subject to disciplinary action. The equivalent provisions concerning request for information made by the Police Ombudsman are similarly drafted.[16] Even though a police officer may be disciplined for invoking the privilege against self-incrimination, the privilege itself has not been abrogated. The present position in which the PCDP Act maintains the privilege against self‑incrimination may be contrasted with the provisions discussed in Commissioner of Police v Justin.[17]
[16] Section 28 of the PCDP Act relevantly provides:
(3)Subject to this section, the Ombudsman may, for the purposes of an investigation under this section make inquiries and obtain information, property, documents or other records relevant to the investigation, as he or she thinks fit.
…
(6)The Ombudsman may, by notice in writing, require a person whom he or she believes to be capable of giving information relevant to an investigation under this section to furnish to him or her in writing, within a period specified in the notice, such information, and to produce to him or her such property, documents and other records, being information, property, documents or records relevant to the investigation, as are specified in the notice.
…
(12)Despite the provisions of any enactment, a person is not excused from furnishing any information, producing property, a document or other record or answering a question when required to do so under this section on the ground that—
(a)the furnishing of the information, the production of the property, the document or record or the answering of the question—
(i)would contravene the provisions of any other enactment; or
(ii)would be contrary to the public interest; or
(b)in the case of a person who is a designated officer, the information, the property, the document or record or the answer to the question might tend to show that he or she has committed a breach of discipline; or
(c)the information, the document or record or the answer to the question would disclose legal advice furnished to a Minister, the Commissioner or to the police force.
(13)A person may refuse to furnish information, produce property, a document or record or answer a question if the information, the property, the document or record or the answer to the question—
(a)might tend to incriminate him or her; or
(b)might tend to incriminate a close relative of his or hers; or
(c)might tend to show that a close relative of his or hers who is a designated officer has committed a breach of discipline,
but any such refusal on the part of a designated officer may be dealt with under the Police Act 1998 or Protective Security Act 2007 (as the case requires) as a breach of discipline.
…
[17] (1991) 55 SASR 547.

Two approaches may be taken to the admissibility in criminal proceedings of an incriminating statement made in order to avoid disciplinary action. First, a police officer may be taken to voluntarily accept the disciplinary regime applicable to him or her on accepting office and a statement made to avoid disciplinary proceedings would, in that sense, be voluntary and generally admissible. Even then, if the right to invoke the privilege is improperly undermined, a statement made in circumstances in which the privilege is otherwise available may be excluded. Of course, merely informing a police officer that the statutory consequence of invoking it is the commission of a disciplinary offence cannot be improper, because s 25(10) of the PCDP Act so provides.
The second position is that an incriminating statement, if given, is necessarily involuntary because of the threat of disciplinary penalty and, therefore, inadmissible in criminal proceedings because of the threat of disciplinary conduct. The second position has the same effect as statutory provisions generally applicable to commissions of inquiry and royal commissions, which require a person to answer questions put by the commission but expressly provide that the answers are inadmissible.[18]
[18] See, eg, Royal Commission Act 1917 (SA) s 16.
It is not necessary to decide that issue in this case because the following propositions about the construction of s 25 of the PCDP Act, and its application to this case, determine the lawfulness of the request, and the admissibility of the statements, adversely to the respondents.
First, sub‑s (8) imposes an obligation to respond only when a direction is given pursuant to sub‑s (5).
Secondly, the word ‘direction’ connotes a statement in the nature of an order. It is assimilated with a direction given by the Commissioner of Police by sub‑s (6). A direction is in the nature of an order, not an invitation.
Thirdly, just as s 25(9) of the PCDP Act is expressly preconditional on the giving of a direction pursuant to sub‑s (5), so too must sub-s (10), notwithstanding the ellipsis of any reference to sub‑s (5). The privilege to refuse to answer on the grounds of self-incrimination, therefore, only arises in the face of a power to compel a response. Textually, the words of s 25(10) of the PCDP Act ‘to furnish information … or answer a question’ plainly relate back to sub‑s (5). The failure to expressly refer in s 25(10) of the PCDP Act to a direction given pursuant to s 25(5) cannot mean that it is a disciplinary offence to refuse to furnish information to whomsoever may request it. If that were so, the preconditions to, and limitations on, the giving of a direction, calculated to ameliorate the position of police officers, would be ineffective. In any event, the disciplinary offence is created by s 25(8) of the PCDP Act, which is expressly limited to a refusal of a request made in the exercise of s 25(5) of the PCDP Act. Section 25(10) of the PCDP Act provides a reasonable excuse for the purposes of sub‑s (8). For all of the above reasons, s 25(10) of the PCDP Act must be limited to a direction given pursuant to sub‑s (5).
Fourthly, for the reasons I have given, Inspector Walsh’s email was an invitation and not a direction.
Fifthly, it follows that SC Jaunay and Constable Hobbs were not bound by sub‑s (8) to respond to Inspector Walsh’s invitation by providing an affidavit, and were not subject to disciplinary action for failing to do so.
Sixthly, it was, therefore, not necessary to inform SC Jaunay or Constable Hobbs that they were entitled to invoke the privilege against self‑incrimination, even though it would render them liable to be charged with a disciplinary offence.
Finally, there were no other circumstances which required Inspector Walsh to remind SC Jaunay and Constable Hobbs of the privilege against self‑incrimination. The investigation was in its very early stages.
The Magistrate erred in finding that the declarations were obtained in breach of the privilege against self‑incrimination and that their use would, for that reason, result in forensic unfairness.
I would, therefore, dismiss paragraphs [1] and [2] of the Notice of Contention.
Returning to the PCDP Act
The respondents also contend that the illegality attending the obtaining of the statements was followed, and exacerbated, by their unlawful use. To deal with that contention, it is necessary to consider the relationship established by the PCDP Act between the Police Ombudsman, the IIS and the Commissioner of Police.
The Police Ombudsman may oversee and guide the investigation of a matter by the IIS by exercising the powers conferred by s 26 of the PCDP Act:
26—Powers of Ombudsman to oversee investigations by IIS
(1)     The Ombudsman may, at any time after a matter has been referred to the IIS for investigation or further investigation under this Act—
(a)discuss the complaint or any aspect of the complaint with the complainant (if the investigation relates to a complaint); or
(b)require the Commissioner or, as approved by the Commissioner, the officer in charge or any other member of the IIS—
(i)to provide information to him or her about the progress of the investigation; or
(ii)to arrange for him or her to inspect any document or record in the possession or under the control of the IIS that is relevant to the matter under investigation; or
(iii)to arrange for him or her to interview a person in relation to the matter under investigation.
(2)     The Commissioner must ensure that any requirement of the Ombudsman made under subsection (1)(b) is complied with without any undue delay.
(3)     The Ombudsman may, by writing, notify the Commissioner of any directions that he or she considers should be given by the Commissioner as to the use for investigative purposes of police officers not serving in the IIS or any other matter or thing in relation to an investigation or investigations by the IIS under this Act.
(4)     Where the Commissioner is notified by the Ombudsman under subsection (3) of any directions that the Ombudsman considers should be given by the Commissioner, the Commissioner must—
(a)give the directions accordingly; or
(b)if he or she does not agree that the directions should be given—notify the Ombudsman, by writing, of his or her disagreement and the reasons for the disagreement.
(4a)   The Ombudsman may give directions to the officer in charge of the IIS as to the matters to be investigated, or the methods to be employed, in relation to a particular investigation under this Act.
(4b) The Commissioner may, by writing, advise the Ombudsman of his or her disagreement with a direction given by the Ombudsman under subsection (4a) and, in that event, the direction will cease to be binding unless or until the matter is resolved by agreement between the Ombudsman and the Commissioner or by determination of the Minister.
…
I accept that the Police Ombudsman’s directions as to the ‘methods to be employed’ cannot dictate how the discretionary powers conferred on the IIS are exercised. The directions given in this case did not do so for the reasons I have given in [34].
The joint oversight of investigations by the Commissioner of Police and the Police Ombudsman in accordance with s 26 of the PCDP Act necessarily contemplates the communication between them of information about the IIS investigation. Neither s 26 of the PCDP Act nor any other of its other provisions exclude the subject matter of the investigation from the Commissioner of Police’s investigatory and prosecutorial responsibilities.
Section 31 of the PCDP Act requires the IIS, on the completion of an investigation, to first deliver its report to the Commissioner of Police. There is nothing in s 31 of the PCDP Act which prevents the Commissioner of Police from exercising his or her powers and discharging his or her duties with respect to the investigation or prosecution of any criminal offence revealed in that report. The Commissioner of Police may direct the IIS to conduct further investigations before sending the report to the Police Ombudsman with such comments as the Commissioner of Police sees fit to make.
Section 32 of the PCDP Act provides that the Police Ombudsman must consider the report and the Commissioner of Police’s comments before making his or her assessment of whether the conduct of a designated officer constitutes an offence, a breach of discipline, or is otherwise improper. The Police Ombudsman must, pursuant to s 32(1)(b) of the PCDP Act, notify the Commissioner of Police whether any action should be taken to charge a designated officer with a breach of discipline or an offence.
Section 34(3) of the PCDP Act provides:
(3)The Commissioner must—
(a) take all such steps (if any) as are necessary to give effect to any recommendations of the Ombudsman—
(i)as agreed to by the Commissioner under subsection (1); or
(ii)as confirmed, varied or substituted by the Ombudsman under subsection (2); or
(b) refer the matter to the Minister.
The scheme of s 34 of the PCDP Act is to ensure that the independent recommendations of the Police Ombudsman are acted upon. They do not preclude the Commissioner of Police acting on his or her own initiative. It is necessarily implicit in s 34 of the PCDP Act that the Police Ombudsman will provide the Commissioner of Police with the evidentiary material collected in the course of an IIS investigation to enable a disciplinary proceeding, or a prosecution commenced by the Commissioner of Police through the prosecution division of SA Police, to be heard and determined. It would cause delay and waste resources if the Commissioner of Police were to receive a bare recommendation but be expected to re-investigate a matter and marshal, afresh, evidence for the prosecution.
In addition, ss 7(1)(a) and 11 of the Director of Public Prosecutions Act 1991 (SA) effectively constitutes the Director as the governmental officer responsible for all prosecutions in South Australia. The Director is the statutory officer in which the prosecution powers and responsibilities of the State itself are invested. The Commissioner of Police and the Director between them make arrangements for the prosecution of summary and indictable offences generally and in particular cases. The provision of evidentiary material to the Commissioner of Police for the purposes of a prosecution necessarily entails its accessibility by the Director.
The respondents contend that, against that statutory context, s 48 of the PCDP Act must nonetheless be construed so as to require the evidential product of an IIS investigation to be kept secret from the Director. Section 48 provides:
(1)In this section—
prescribed officer means—
(a)a person acting under the direction or authority of the Ombudsman; or
(b)a member of the IIS or any other designated officer,
but does not include the Ombudsman or the Commissioner;
relevant person means—
(a)in relation to a person who is or has been acting under the direction or authority of the Ombudsman—the Ombudsman; or
(b)in relation to a person who is or has been a designated officer—the Commissioner; or
(c)in any case—the Minister;
Tribunal means the Police Disciplinary Tribunal or the Protective Security Officers Disciplinary Tribunal, as the case may be.
(2)Except as required or authorised by this Act or by a relevant person, a person who is, or has been, a prescribed officer must not, either directly or indirectly, make a record of, or divulge or communicate, information acquired by reason of his or her being, or having been, a prescribed officer, being information that was disclosed or obtained under this Act.
Maximum penalty: $2 500 or imprisonment for 6 months.
It should immediately be observed that the obligation of confidentiality imposed by sub‑s (2) does not apply to the Police Ombudsman and the Commissioner of Police. Nor could it be intended to preclude note-taking by, and communications between, prescribed officers for the purposes of carrying out an investigation. Those activities are necessarily authorised by the provisions of the PCDP Act, which authorise or require investigations to be undertaken by the IIS. The use of information obtained to guide and formulate the questioning of witnesses or suspects is an obvious example. Section 48 does not forbid an IIS officer, who is investigating a complaint referred by the Police Ombudsman, from revealing, implicitly or explicitly, information previously obtained in the course of the investigation, for the purpose of testing, confirming or obtaining more detail about that information. To do so is the very essence of an investigative process. Insofar as questioning by the investigators in this case of Mathew, Maria or Reece may have been based on, or even revealed, information obtained by SC Jaunay or Constable Hobbs, it was not unlawful in the absence of any suggestion that the questioning was undertaken in bad faith. Nor does s 48 of the PCDP Act prohibit the exchange of information between IIS officers involved in the same investigation.
Furthermore, even though the PCDP Act requires that complaints be investigated by the IIS, there is no reason why that complaint cannot be investigated at the same time as, and jointly with, other police officers investigating an offender. The purpose of establishing the IIS is to ensure independent control of investigations into police officers and a direct reporting line to the Commissioner of Police. That purpose is not compromised by collaboration with other police officers. Indeed, as we shall see, the Police Ombudsman, when personally investigating a complaint, may co-opt other police officers who are not members of the IIS.
There are a range of circumstances in which the proper progress of an IIS investigation may require, or benefit from, the cooperation of other police officers, members of governmental agencies or members of the public. The communication of information obtained in the course of an inquiry by an IIS officer to a person who is not an IIS officer may, in those circumstances, also be authorised by the PCDP Act because it is for the purposes of the investigation.
Communications between the IIS and ICAC were arguably authorised for that reason. However, it is not necessary to finally so decide because of the effect of s 50 of the ICAC Act, which I consider below.
Subsections (4) to (6) of s 48 of the PCDP Act deal with the divulging of information by prescribed officers after or outside the ordinary course of the investigations. Section 48(4) of the PCDP Act permits a prescribed officer to divulge the information in evidence on the prosecution of an offence or breach of discipline ‘relating to a matter the subject of the investigation’ or on any other matter if the court, for special reasons, requires the evidence to be given.
Section 48(5) of the PCDP Act permits a prescribed officer to consult a legal practitioner in relation to a matter under investigation. Section 48(6) of the PCDP Act permits an officer whose conduct has been investigated to divulge the outcome of the investigation.
Section 48(7) of the PCDP Act protects the Commissioner of Police and the Police Ombudsman from compulsory disclosure processes except in proceedings in respect of an offence or a breach of discipline relating to the subject matter of an investigation:
(7)Despite any other Act or law, a person who is or has been the Ombudsman or the Commissioner cannot be required to divulge information disclosed or obtained under this Act in the course of an investigation except where such a requirement is made—
(a) in proceedings before a court or the Tribunal in respect of—
(i)an offence; or
(ii)a breach of discipline,
relating to a matter the subject of the investigation; or
…
Section 48(7) does not prevent the Commissioner of Police or the Police Ombudsman from divulging the information voluntarily. In summary, the secrecy provisions do not apply to communication required or authorised by the PCDP Act, nor to disclosures authorised by the Police Ombudsman. Officers of the IIS must report to the Police Ombudsman who must report to the Commissioner of Police. In this case such evidence as there is shows that a brief of evidence was sent to SA Police prosecutors for adjudication by ICAC. However, it may equally have been provided by the Police Ombudsman directly, or by IIS officers with the Police Ombudsman’s consent, without breaching s 48 of the PCDP Act. It may also have lawfully been through, or in accordance with the standing orders, or particular directions of, the Commissioner of Police.
I would, therefore, dismiss paragraph [6] of the Notice of Contention.
The ICAC Act[19]
[19] As in force between 1 September 2013 and 23 November 2014.
In any event, the provisions of the ICAC Act place the lawfulness of the dissemination of information in this case beyond doubt.
Section 7(1) of the ICAC Act confers on ICAC the following functions:
(a)     to identify corruption in public administration and to—
(i)investigate and refer it for prosecution; or
(ii)refer it to South Australia Police or the Police Ombudsman for investigation and prosecution;
(b)     to assist inquiry agencies and public authorities to identify and deal with misconduct and maladministration in public administration;
(c)     to give directions or guidance to inquiry agencies and public authorities, and to exercise the powers of inquiry agencies in dealing with misconduct and maladministration in public administration, as the Commissioner considers appropriate;
…
It follows that ICAC was independently empowered to investigate Maria’s complaint, or to assist the Police Ombudsman to investigate.
ICAC may use the staff of other government agencies. In particular, s 13(2) of the ICAC Act provides:
(2)The Commissioner may, under an arrangement established by the Commissioner of Police, make use of members of South Australia Police, special constables or the services of South Australia Police.
Section 15 of the ICAC Act provides that ICAC is to cooperate with other law enforcement agencies insofar as that is consistent with the proper conduct of its functions.
As I earlier observed, s 20 of the ICAC Act empowered ICAC to make guidelines which required the Police Ombudsman to report Maria’s complaint to him:
20—Reporting system
(1) The Commissioner must prepare directions and guidelines governing reporting to the Office of matters that an inquiry agency, public authority or public officer reasonably suspects involves corruption, misconduct or maladministration in public administration.
(2)    The directions and guidelines—
(a)     must include provisions specifying the matters required to be reported and guidance as to how they should be reported; and
(b)     may require matters to be reported even if the matter has been referred to the inquiry agency, public authority or public officer under another Act; and
(c)     must be made available free of charge on the Internet, and at premises established for the receipt of complaints or reports by the Office, for inspection by members of the public.
(3)    An inquiry agency, public authority or public officer—
(a)     must make reports to the Office in accordance with the directions; and
(b)     may report to the Office any matter that the agency, authority or officer reasonably suspects involves corruption, misconduct or maladministration in public administration.
(4)The Attorney-General may, in any event, report such matters to the Commissioner for consideration as the Attorney-General considers appropriate.
The ICAC Commissioner may co-opt, or limit, the investigations of other agencies:[20]
[20] ICAC Act s 34.
34—Limiting action by other agencies and authorities
(1)     The Commissioner may, by written notice, require a South Australian law enforcement agency, inquiry agency or public authority to refrain from taking action, in respect of a particular matter being investigated by the Commissioner under this Act or to conduct a joint investigation with the Commissioner in respect of a particular matter (and the agency or authority must comply with the requirement even if the agency or authority is otherwise required or authorised to take action under another Act).
(2)     The notice must specify the period for which it is to apply and set out details of the action that is not to be taken or the requirements governing any joint investigation.
(3)     The Commissioner must consider any comments of the agency or authority with respect to the terms of the notice.

That aspect of s 34 of the ICAC Act which empowers ICAC to enjoin an authority from conducting an investigation is not presently relevant, but it informs the purpose of that part of s 34 which empowers ICAC to compel cooperation in a joint investigation. The purpose of s 34 is to compel compliance with ICAC’s investigative strategies and methods in the event that ICAC and other agencies do not mutually agree on those matters. The very expression ‘joint investigation’ connotes that each agency acts in accordance with its powers and functions. There is, therefore, no reason why a joint investigation that is commenced by such a notice may not be continued by agreement.
Section 36 of the ICAC Act expressly authorises ICAC to refer a matter to a law enforcement agency for potential prosecution:
On completing an investigation or at any time during an investigation, the Commissioner may do either or both of the following:
(a) refer a matter to the relevant law enforcement agency for further investigation and potential prosecution;
(b) refer a matter to a public authority for further investigation and potential disciplinary action against a public officer for whom the authority is responsible.
The referral of a matter for potential prosecution must necessarily include the evidentiary material collected in the course of the investigation. The notes made by the police prosecutor, and received into evidence, show that ICAC referred the potential prosecution of SC Jaunay and Constable Hobbs to SA Police.
Section 50 of the ICAC Act abrogates secrecy requirements, or other restrictions on disclosure, in other laws for the purposes of a complaint or investigation under the ICAC Act:
50—No obligation on persons to maintain secrecy
No obligation to maintain secrecy or other restriction on the disclosure of information applies for the purposes of a complaint, report or investigation under this Act, except an obligation or restriction designed to keep the identity of an informant secret.
The first provision of information by the Police Ombudsman to ICAC, was, as we have seen, a report and, therefore, falls within s 50 of the ICAC Act. Section 50 of the ICAC Act also frees all persons bound by an obligation of secrecy insofar as the information is divulged for the purposes of an ICAC investigation. It, therefore, relieves agencies conducting a joint investigation with ICAC, whether by mutual assent or pursuant to a mandatory direction given by s 34 of the ICAC Act, of any secrecy obligation which would otherwise apply in order to facilitate the joint investigation. Section 50 of the ICAC Act is a complete answer to the respondents’ complaints that IIS officers shared information with ICAC. Information provided after the initial report on 4 February 2014 was provided in the course of an ICAC investigation, whether it was a joint investigation with the IIS or not. If the affidavits of SC Jaunay and Constable Hobbs were provided before the investigation commenced, they were properly provided as part of the continuing obligation to report.
Section 51 of the ICAC Act provides for the Commissioner of Police and Police Ombudsman to make general arrangements with ICAC as follows:
51—Arrangements for provision of information by Commissioner of Police and Police Ombudsman
The Commissioner of Police and the Police Ombudsman are to enter into arrangements with the Commissioner under which the Commissioner, the Deputy Commissioner, examiners and investigators are given access to confidential information and databases for the purposes of investigations under this Act and for appropriate protection of the confidentiality of the information accessed.
Section 51 of the ICAC Act does not detract from, condition or limit the blanket lifting of confidentiality effected by s 50 of the ICAC Act. Section 50 of the ICAC Act removes the obligation of secrecy for any person or agency who is prepared to voluntarily disclose information, but it does not compel it. Section 51 of the ICAC Act requires the Police Ombudsman and Commissioner of Police to make arrangements with the ICAC Commissioner pursuant to which the latter can have access to confidential information.
Section 54(2) of the ICAC Act provides that the ICAC Commissioner may disclose information that is the subject of a complaint investigation:
(2) The Commissioner may, as the Commissioner considers appropriate, provide, or authorise the provision of, information connected with a matter that is the subject of a complaint, report, assessment, investigation, referral or evaluation under this Act to—
(a)     a person who makes a complaint or report to the Office; or
(b)     a person who is the subject of a complaint, report or investigation; or
(c)     a person who is required by the Commissioner or an investigator to answer a question, produce a document or other thing or provide a copy of a document or a statement of information; or
(d)     an inquiry agency, public authority or public officer; or
(e)     a law enforcement agency; or
(f)      a Minister; or
(g)     the Auditor-General; or
(h)     a legal or technical expert from whom advice is sought in the course of an investigation; or
(i)      a person conducting a review under Part 5; or
(j)      any other person of a class prescribed by the regulations.
It was that power of the ICAC Commissioner to disclose information which was delegated to SI Schaefer.[21] It was the exercise of that power which authorised the provision of the product of the joint investigation to SA Police prosecutions and the Director.
[21] The instrument of delegation limited disclosure to the persons listed in subparagraphs (a) to (e) and (h).
I would, therefore, allow the Director’s appeal on ground 1.2. I would dismiss paragraph [5] of the respondents’ Notice of Contention.
Staying a prosecution – General principles
I deal first with the question of the admissibility of the affidavits of SC Jaunay and Constable Hobbs if they were indeed involuntary. In that event, they are simply inadmissible. Alternatively, they may be excluded because it is otherwise forensically unfair to admit them. In either case, once excluded, there is no reason to also stay the prosecution, which is substantially supported by other evidence, merely because the affidavits were obtained in circumstances which render it unfair to admit them.
To justify the stay, the respondents must show a forensic unfairness arising from the subsequent use of the affidavits. If, contrary to what I have held, the use and dissemination of the affidavits of SC Jaunay and Constable Hobbs were unlawful, I would, nevertheless, hold that it was wrong to stay the proceedings against them. The general principles are summarised in the Director’s submissions:
Permanent stay: general principles
72.The Magistrates Court has a power to stay criminal proceedings permanently where the prosecution will result in a trial that is unfair and an abuse of the processes of the court. The power involves the exercise of a discretion.
…
74.Before granting a stay, the Court must be satisfied that there is no other way of remedying the problem, and no other available means to bring about a fair trial. The community interest in facilitating the prosecution of persons accused of serious crimes weighs heavily against the grant of a permanent stay of proceedings.
…
78. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial which is of such a nature that there is nothing that a trial Magistrate can do in the conduct of the trial to relieve against its unfair consequences. To put this another way, there must be no other means of remedying the problem said to give rise to unfairness (for example, appropriate directions, adjournments, interlocutory orders, rulings on evidence, etc.), nor any other means available to the court bring about a fair trial.
(Footnotes omitted)
In Lee v The Queen, French CJ, Crennan, Kiefel, Bell and Keane JJ explained why the use in a criminal prosecution of the product of a compulsory examination, unless authorised by statute, is forensically unfair:[22]
[46]… the point [X7 v Australian Crime Commission] makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges.
[22] (2014) 253 CLR 455 at [46].
The Court concluded in Lee v The Queen that there had been a miscarriage of justice because, even though the information was lawfully obtained, it was wrongly made available to the prosecution:[23]
[51]The circumstances of this case involve the wrongful release and possession of evidence. However, its effects cannot be equated with the use of evidence illegally or improperly obtained. The question whether such evidence should, as a matter of discretion, be admitted does not arise. Clearly, s 18B(2) of the NSWCC Act provided that the appellants’ evidence before the Commission was inadmissible at their trial. Rather, these appeals concern the effect of the prosecution being armed with the appellants’ evidence. It is not necessary to resort to questions of policy to determine whether a miscarriage of justice has occurred. What occurred in this case affected this criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused. There was no legislative authority for that alteration. Indeed, it occurred contrary to the evident purpose of s 13(9) of the NSWCC Act, directed to protecting the fair trial of examined persons.
[23] (2014) 253 CLR 455 at [51].
Nonetheless, the Court did not order a permanent stay, but instead directed a retrial because safeguards could be put in place to ensure that the information was not made available to the prosecutors who would conduct the retrial.
The ordering of a stay to safeguard an accused from forensic unfairness subsequently came before the Court of Appeal of New South Wales in R v Seller[24] (Seller). In Seller, Bathurst CJ doubted that knowledge of testimony given under compulsory examination would, in all cases, result in such a degree of forensic unfairness that the trial must necessarily miscarry:[25]
[110]I do not think that the fact that any potential witness was present during the compulsory examination of a person subsequently charged or who had read the transcript of evidence given at the compulsory examination, in all cases, would alter a trial in a fundamental respect in the sense described in X7 (2013) and Lee (2014). However, it is unnecessary to decide that point.
[24] (2015) 89 NSWLR 155.
[25] (2015) 89 NSWLR 155 at [110].
Bathurst CJ accepted the efficacy of the mechanism of engaging prosecutors with no knowledge of the material:[26]
[212]Grounds 5 and 7 of the notice of appeal focus primarily on the proposition that the content of the examinations and the compulsorily acquired material have been disclosed to the current prosecuting team without their knowledge. I have dealt with this submission to some extent in my consideration of ground 3. At risk of repetition, in circumstances where the Crown case does not depend on any of that material and where the assurance on behalf of the current team that they have not read the transcripts or such material has been accepted, this possibility is, at most, speculative.
[26] R v Seller (2015) 89 NSWLR 155 at [212].
Bathurst CJ rejected the submission that the mere possibility of a disclosure of an unidentified item of information is sufficient to require a stay of the prosecution.[27]
[27] R vSeller (2015) 89 NSWLR 155 at [212]-[216].
In Seller, Fullerton J identified an approach to the balancing exercise required if a witness has had access to compulsorily acquired information:[28]
[229]I would wish only to add my own view as to whether Lee v The Queen is authority for the proposition for which the respondents contend, namely that a witness who has been privy to compulsorily acquired information must be excluded from giving evidence in the trial of an accused. I agree with the Chief Justice that it is not necessary on this appeal to decide whether any witness that the Crown might call at trial who has been exposed to compulsorily acquired information must be excluded. I would, however, venture the view that in a particular case that question will depend on the material the witness has been exposed to, and the evidence the witness is to give at trial in proof of the charge or charges, in the context of the issues in dispute at trial in an adversarial setting where the Crown has the obligation of proving the guilt of an accused.
[230] Lee is, however, authority for the proposition for which it was cited by the respondents on the appeal, namely that the fundamental and underlying tenet of a fair trial at common law is that it is for the prosecution to prove the guilt of an accused person, and that any risk of upsetting the balance between the power of the state to prosecute and the position of an individual who stands accused, by the dissemination of compulsorily acquired material is open to be remedied by discretionary orders of the trial judge of the kind made by the primary judge in this case.
(Citation omitted)
[28] (2015) 89 NSWLR 155 at [229]-[230].
In Strickland (a pseudonym) v Director of Public Prosecution (Cth)[29] (Strickland), the High Court ordered the stay of a prosecution brought after the compulsory processes of the Australian Crime Commission were engaged at the behest of an investigating police officer without any lawful basis to examine the accused after they had refused to answer that police officer’s questions. Kiefel CJ, Bell and Nettle JJ (the plurality) summarised the finding of the trial Judge as follows:[30]
[62]… this case involved the deliberate, coercive questioning of suspects for the very reason that they had exercised their right to decline a cautioned police interview, and thereby for the very purpose of achieving a forensic disadvantage for the appellants and a forensic advantage for the prosecution in foreseen future criminal prosecutions.
[29] (2018) 93 ALJ 21.
[30] Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 93 ALJR 1 at [62].
The plurality distinguished the forensic disadvantage for the accused from other cases involving the use of material obtained under compulsion:[31]
[80]… compared to previous cases in which the effects of unlawful examination and dissemination of examination product have been considered, these cases involve an extraordinarily wide-ranging undocumented dissemination of examination product to AFP officers involved in the investigation process, including to those who would be required to give evidence at trial.
[31] Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 93 ALJR 1 at [80].
The particular forensic advantage gained by the prosecution through the examination was the selection of particular documents from volumes of materials identified by the accused in their examinations, from which it contended an inference of guilt might be drawn. It was not open to the accused to suggest that the documents on which the prosecution relied were a misleading sample without revealing they had identified them. The plurality continued:[32]
[84]Nor is it an answer to the forensic disadvantage identified to say, as the Court of Appeal considered it to be, that it was incumbent on the appellants to demonstrate the respects in which the prosecution had been thereby advantaged. After all, how were the appellants practically to go about that? Where, as here, there were some tens of millions of relevant documents and no documentary record of the distribution of examination product within the AFP and the Office of the CDPP and the manner in which it was used to inform prosecutorial decisions, it would surely have been extremely difficult. And it would have been potentially dangerous for the appellants to make a serious attempt at discrediting the perfunctory denials of use which appeared in several prosecution witnesses’ affidavits, as it would have risked exacerbating the prejudice to the appellants by potentially exposing perceived weaknesses in the prosecution case and possible paths of available defences.
[85]In the result, all that can be said with any degree of confidence, as the primary judge in effect found, is that given the number of AFP officers who attended the examinations and that the examination product was disseminated far and wide within the AFP and the Office of the CDPP, it is practically impossible to try the appellants (with the possible exception of Galloway) without subjecting them to the forensic disadvantages which have been referred to. Regardless, therefore, of the extent to which the examination product was or was not of assistance to the prosecution in constructing the Crown case, the only sure way of wholly eradicating the effects of the unlawful examinations and the unlawful dissemination of the examination product would be to begin the investigation again, with different investigators, without access to the fact or results of the previous examinations. Short of that, the prejudice to a fair trial is at least to a significant extent incurable.
(Footnotes omitted)
[32] Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 93 ALJR 1 at [84]-[85].
The plurality then turned to the alternative basis on which a stay might be justified – that the prosecution brought the administration of justice into disrepute:[33]
[99]Further, although in previous cases regarding unlawful examination and dissemination of examination product the courts’ concerns regarding the administration of justice falling into disrepute have focussed on deliberate or advertent reckless disregard of legal requirements, nothing in previous authority suggests or should be taken to imply that abjectly insouciant, wide-ranging disregard of the requirements of the ACC Act of the kind that occurred in the present cases may not also bring the administration of justice into disrepute. As the majority of this Court stated in Moti v The Queen, decided cases should not be read as attempting to chart the boundaries of abuse of process. Nor should they be read as attempting to define exhaustively the circumstances that warrant exercise of the power to stay criminal proceedings or as providing some ‘exhaustive dictionary of words’ by one or more of which executive action must be capable of description before proceedings may be stayed. As Kirby J aptly summarised the position in Truong v The Queen:
relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.
[100]… The power to stay proceedings is not available to cure venial irregularities. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice, condonation of its breach will bring the administration of justice into disrepute regardless of the culprit’s mentality. Ultimately, these appeals turn on that distinction.
[101]As was remarked by Hayne and Bell JJ in X7 (No 1), the common law right to silence is a fundament of the criminal justice system that applies at all stages of the process to all persons suspected of an offence, whether charged or not yet charged, and also at trial. But it is not constitutionally entrenched. … invocation of the power [of compulsory examination] for a purpose other than the specific, identified purpose, or that otherwise does not accord strictly with the statute, flouts the will of the Parliament as expressed through the statute and as such is an unlawful infraction of the common law right to silence that cuts deep against the grain of the accusatorial nature of the criminal justice system. It follows that, whether such an unlawful infraction of the will of the Parliament and the right to silence is intentional, or the result of advertent recklessness, or, as here, the consequence of grossly negligent abrogation of statutory responsibilities, its condonation is apt to bring the administration of justice into disrepute.
[102]Admittedly, as has been recognised in cases such as X7 (No 2), an infraction is less likely to bring the administration of justice into disrepute where it is the result of an honest and reasonable mistake. But the unlawful exercise of compulsive powers in these cases was carried out in blatant disregard of the protections conferred by the ACC Act. The departures from those requirements infected the exercise of compulsive power with illegality at every stage of the process.
(Footnotes omitted)
[33] Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 93 ALJR 1 at [99]-[102].

Applying those principles to the circumstances of this prosecution, if the affidavits of SC Jaunay and Constable Hobbs were wholly obtained by the prosecution, the first point which must be made on the question of prejudice is that the drug diversion notice which is admissible against SC Jaunay gives an account of events which is largely consistent with his affidavit. Importantly, it sets out his conversation with Maria which derisively dismissed the allegation that he hit Mathew and makes no reference to any conduct by Mathew which may have justified the use of any force. Even though not admissible against Constable Hobbs, it serves to give much the same notice as his affidavit of his likely defence, that is, a denial of the use of any unwarranted force. Secondly, the extent to which the affidavits guided the obtaining of statements from Mathew and Reece is, on the face of those statements, relatively minor. It is doubtful that Reece gleaned much from his questioning, and in this case, as with many like it, there is a greater danger that the witnesses themselves will discuss the matter in a way which taints their evidence than that it will be influenced by the process of taking a statement. Thirdly, Mathew, Reece and Maria will testify and be subject to cross‑examination. The statements they have given are not admissible unless they are cross‑examined in a way which renders them so.
If it were unlawful for both the IIS and ICAC to provide copies of the affidavits to police prosecutors or the prosecutors in the Office of the Director of Public Prosecutions, prosecutors who have had no access to them may be briefed. If the provision of the statements of Mathew, Maria and Reece were unlawful, they too can be kept from the prosecutors. The withholding of their statements does not mean that there would never have been, or can never be, a prosecution. Maria complained of the assault against Mathew the very day it occurred. Maria, Mathew and Reece can be called as witnesses. The respondents have failed to show any significant risk that their recollections have been so tainted by the investigation conducted by the IIS and ICAC that they will suffer a degree of forensic unfairness warranting a stay.
Unlike the circumstances in Strickland, there are only three prosecution witnesses who could give direct evidence of what happened on Panter Street, and no evidentiary material which suggests that the contents of the affidavits were disclosed to them. Be that as it may, an investigation of what was disclosed by the questioning process is a relatively confined one, and would be apparent on the face of the several statements of interviews they gave.
I do not accept that the possibility that SC Jaunay and Constable Hobbs might give an account in evidence so dramatically different from their sworn affidavits, that they would place themselves in jeopardy of a prosecution for perjury, is a relevant unfairness in the trial of the assault charges.
First, the possibility is largely speculative. There is no reason to think SC Jaunay and Constable Hobbs would not maintain the position in their affidavits, and the drug diversion notice, or that there is some hitherto undisclosed defence which is inconsistent with their earlier affidavits. It will also be remembered that SC Jaunay adopted the contents of his affidavit in its entirety when he was subsequently interviewed by an IIS investigator.
Secondly, even if they had not given their initial statements on oath, a material departure from them would place them in jeopardy of a perjury prosecution for inconsistent testimony which they might later give at the trial. That is particularly so in the case of SC Jaunay given the consistency between his affidavit and the drug diversion notice.
Thirdly, an accused has a right to give evidence but it does not follow that his or her trial is forensically unfair if he or she decides not to give evidence because he or she may be exposed to extraneous adverse consequences.
It is not generally a relevant forensic unfairness that the testimony an accused may give in his or her defence exposes him or her to a different prosecution, for other offences, disclosed, or committed, by the giving of that testimony. If the sworn affidavits were unlawfully obtained, it may, rather than merely being involuntary, be an abuse of process to charge SC Jaunay or Constable Hobbs with having falsely sworn them, or to use them to prove that the testimony they gave in court was false. However, that is quite a different matter.
Finally, the prosecution will not undermine confidence in the administration of justice. The relevant provisions of the PCDP Act and ICAC Act, whatever their ultimate construction may be, at least arguably gave the investigation and prosecution a lawful foundation. The investigators and prosecutor acted reasonably in proceeding on the basis that they had statutory authority for their actions. This is not a case in which the investigators or prosecutors acted recklessly by ignoring, or failing unreasonably to consider, that their conduct might not be authorised by law. The delay in laying the Information is substantial and not properly explained. However, given the narrow compass of the factual dispute and that the statements of the witnesses to it were recorded soon thereafter, there is no forensic unfairness.
On the other hand, there is strong public interest in the prosecution of offences generally and in deterring abuse by officers of SA Police of their positions of authority. I allow the Director’s appeal on all grounds as particularised and dismiss paragraphs [3] and [7] of the respondents’ Notice of Contention as well as the Notice insofar as they contend that any unfairness could not be remedied. The order made by the Magistrate permanently staying the prosecution of the respondents is set aside.
KELLY J: I agree with the Chief Justice.
PARKER J:         I agree with the reasons of the Chief Justice and the order he proposes.
Appendix A – Notice of Appeal
…
1. Orders complained of
1.That the proceedings be permanently stayed.
The appeal is against whole of the order
2. Orders sought
1.That the order that the proceedings be permanently stayed be set aside.
3. Grounds of appeal
1.The Learned Magistrate erred in ordering a stay of proceedings in circumstances where:
1.1.   the affidavits were not obtained unlawfully;
1.2.   the provision of the affidavits from IIS to ICAC (and ultimately to the DPP) was not unlawful;
1.3.   any unfairness to the accused could be resolved by either exclusion of the evidence and/or the allocation of a new prosecution team;
1.4.   if any infraction occurred, allowing the proceedings to run their course would not be likely to bring the administration of justice into disrepute;
1.5.   there was a particularly strong public interest in the matter proceeding; and/or
1.6.   the delay was not established to have caused any prejudice to the defendants.
4. Permission to appeal               Not applicable
5. Extension of time                   Not applicable
…
Appendix B – Notice of Contention
…
The Respondents contend that the decision of the court below should be affirmed on grounds additional to those relied on by the court order below, but do not seek a discharge or variation of any part of the orders of the court below, as follows:
IIS’s obtaining of affidavits unlawful:
1    The email (in respect of each Respondent) sent on 30 December 2013 by Detective Inspector Walsh of the Internal Investigation Service (IIS) of South Australia Police (SAPOL) for the Respondents to provide by affidavits (Email), whether a ‘request’ under 25(3) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) (P(CDP) Act) or a direction under 25(5) of the P(CDP) Act, was not only unfair (Judgment [23]), but was made in excess of power and unlawful (contra, Judgment [23]), because:
(i) IIS’s power to conduct an investigation under s 25 did not extend to requesting or directing a police officer to provide an affidavit; and
(ii) the Police Ombudsman’s power under s 26 of the P(CDP) Act to give directions or issue requirements to the Commissioner of Police or IIS as to the conduct of an investigation did not extend to directing the Commissioner or IIS that affidavits be obtained from officers under investigation.
2 The Email was a requirement under compulsion (Judgment [17]) for the additional reasons that it was issued unlawfully; that failure to provide the affidavit (whether pursuant to s 25(3) or s 25(5) of the P(CDP Act) would be a breach of discipline by each Respondent under s 25(8); that refusal to comply on the grounds of self‑incrimination would be dealt with as a breach of discipline under s 25(10); and that upon failure to provide the affidavit pursuant to s 25(5), pursuant to s 25(9)(b) it was not an excuse that the affidavit might tend to show the officer had committed a breach of discipline.
3    The requesting or directing of the provision of the affidavits advantaged the prosecution and compromised the way in which the Respondents could manage their trial (Judgment [19]) for the additional reasons that the unlawful requirement under compulsion altered the accusatorial process for the investigation, prosecution and trial of the offences, by unlawfully requiring the Respondents to provide IIS with information in the form of affidavits by the Respondents, consequently limiting the Respondents in the conduct of their defences in a manner to which they should not lawfully have been subjected.
Email was a direction, not a request, and was an unlawful direction
4    The Court’s finding that the Email was a request rather than a direction (Judgment [13], [14]) involved legal error since:
(i)on all evidence the Email was a direction pursuant to s 25(5) of the P(CDP) Act to the Respondents to provide affidavits in relation to the incident which was the subject of the charges; and
(ii)in particular, the Email was issued in conformity with a direction given by the Police Ombudsman on 28 November 2013 pursuant to ss 26(1)(b)(i) and 26(4a) of the P(CDP) Act, that one of the methods to be employed in the investigation by the IIS under s 25 was to obtain statements from the Respondents in affidavit format sworn/affirmed and appropriately witnessed.
Additional bases on which disclosure unlawful:
5    The disclosure to the Independent Commission Against Corruption (ICAC) of the affidavits and other information obtained in the investigation under s 25 was an unlawful contravention of s 48 of the P(CDP) Act (Judgment [21], [30]) for the additional reasons that:
(i)the power to require the conduct of a joint investigation under s 34 of the Independent Commission Against Corruption Act 2012 (SA) (ICAC Act) enabled the ICAC to restrain the conduct of inquiries by IIS but did not give the ICAC the powers of the IIS under s 25 to obtain information or power under any other provision of the P(CDP) Act;
(ii)the ICAC’s decision to conduct a joint investigation under s 34 of the ICAC Act did not empower IIS to disclose to the ICAC information held by IIS; and
(iii)IIS disclosed the affidavits and other information to the ICAC for an improper purpose, namely to assist the ICAC in its investigation into suspected corruption, which was not a purpose for which the IIS could exercise any power vested in it to disclose the information.
6    The disclosure by SAPOL to the Director of Public Prosecutions (DPP) of the affidavits and other information obtained in the investigation under s 25 was an unlawful contravention of s 48 of the P(CDP) Act because:
(i)the disclosure was not authorised by the Commissioner of Police or by the Police Ombudsman; and
(ii)the affidavits were unlawfully obtained.
Additional grounds for a permanent stay:
7    The stay was properly ordered on the ground of abuse of process in that it:
(i)gave an unfair advantage to IIS in the investigation, and to the prosecution, and caused an ineradicable unfairness and prejudice to, and oppression of, the Respondents (Judgment [35], [41], [43], [45]), for the additional reasons of:
(a)   the unlawfulness of IIS’s request or direction by which it obtained the Respondents’ affidavits;
(b)   the unlawfulness of the disclosure of the affidavits and other information to the ICAC and to the DPP,
(ii)brought the administration of justice into disrepute by:
(a)   the unlawfulness of IIS’s request or direction by which it obtained the Respondents’ affidavits;
(b) IIS acting pursuant to the Police Ombudsman’s direction on 30 January 2014 under ss 26(1)(b)(i) and 26(4a) of the P(CDP) Act to investigate whether the Respondents breached former reg 12 of the Police Regulations 2014 (SA) (requiring them to act with honesty and integrity in the course of their employment or otherwise), by conducting interviews of the Respondents under criminal caution seeking information relating to contravention by the Respondents of s 27 of the Oaths Act 1936 (SA) in making affidavits that they had been requested or directed to provide to the IIS; and
(iii)substantial delay in bringing the prosecutions for the assaults.
Orders sought
1.   That the appeal be dismissed.
…

[2020] SASCFC 25

22 April 2020

Key Legal Topics

Areas of Law

Criminal Law

Statutory Interpretation

Legal Concepts

Stay of Proceedings

Abuse of Process

Charge

Sentencing