Director of Public Prosecutions v ASAP Australian Security Protection Pty Limited; Director of Public Prosecutions v ASAP Armoured Pty Limited

[2017] NSWSC 294

Supreme Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions v ASAP Australian Security Protection Pty Limited; Director of Public Prosecutions v ASAP Armoured Pty Limited [2017] NSWSC 294
Hearing dates:	17 February 2017
Date of orders:	28 March 2017
Decision date:	28 March 2017
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Parties to bring in short minutes of order
Catchwords:	STAY OF PROCEEDINGS – whether relief short of a permanent stay sufficient to ensure a fair trial – whether adequate reasons provided – whether coercive provisions under one Act can be used to obtain evidence for the prosecution of criminal offences under a different Act – whether weighing process undertaken to balance requirements of fairness to accused with legitimate public interest
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Evidence Act 1995 Firearms Act 1996 National Parks and Wildlife Act 1974 Protection of the Environment Operations Act 1997 Security Industry Act 1997 Snowy Mountain Cloud Seeding Act 2004 Weapons Prohibition Act 1998
Cases Cited:	Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 320 ALR 448; [2015] HCA 21 D’Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260 Director of Public Prosecutions (DPP) v Abouali [2011] NSWSC 110 Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 2062; [2013] NSWSC 1882 Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 Director of Public Prosecutions (NSW) v Richardson [2015] NSWSC 1753 Director of Public Prosecutions (NSW) v Wililo (2012) 222 A Crim R 106; [2012] NSWSC 713 Edmondson v The Attorney General of NSW [2014] NSWLC 18 Lee v Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Melbourne Corporation v Barry (1922) 31 CLR 174; [1922] HCA 56 R v Independent Broad-based Anti-corruption Commissioner (2016) 329 ALR 195; [2016] HCA 8 R v OC [2015] NSWCCA 212 R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 Southon v Beaumont [2008] NSWLEC 12 Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 Theiss v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Wong v R (2001) 207 CLR 584; [2001] HCA 64 Worrall v The Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28 Wyong Shire Council v Hughes [2000] NSWLEC 5 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Plaintiff) ASAP Australian Security Protection Pty Limited (Defendant) ASAP Armoured Pty Limited (Defendant)
Representation:	Counsel: D Kell SC with B Baker (Plaintiff) K Ginges with P Lonergan (Defendants)   Solicitors: Office of the Director of Public Prosecutions (Plaintiff) Benjamin Nicholson Law (Defendants)
File Number(s):	2016/594852016/59489
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The Director of Public Prosecutions seeks orders pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 that Magistrate Favretto’s grant on 2 December 2015 of a permanent stay of criminal proceedings on summary charges against the defendants be set aside, and that all matters be remitted to the Local Court to be dealt with according to law. The Director’s interest has been enlivened by a concern that his Honour erroneously purported in the matters before him to apply certain of the principles which gained prominence in cases such as R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76. His Honour took the view, contrary to the prosecutor’s submissions, that information compulsorily provided by the defendants pursuant to certain provisions of the Security Industry Act 1997 could not be used in prosecution of the defendants for offences under the Firearms Act 1996 and the Weapons Prohibition Act 1998. His Honour concluded that a permanent stay of the proceedings was the only proper course in the circumstances.

2. The appeal is brought pursuant to s 56(1)(b) of the Crimes (Appeal and Review) Act, which confers a right of appeal upon the prosecution against an order made by the Local Court dismissing a matter the subject of any summary proceedings on a ground that involves a question of law alone.

3. The Director relies in this Court upon the following grounds of appeal with respect to Australasian Security Network Pty Ltd. It is asserted that Magistrate Favretto erred in law by:

1. Failing to provide adequate reasons for his decision permanently to stay the charge for the offence of possess or use prohibited weapon without a permit contrary to s 7(1) of the Weapons Prohibition Act 1998.

2. Holding that any evidence or information properly obtained by police under the Security Industry Act could not be used (directly or indirectly) by police in a prosecution under related legislation such as the Weapons Prohibition Act.

3. Ordering a permanent stay:

1. In respect of material that had not been compelled and was not in evidence before the court; and

2. In circumstances where there was no evidence before the court that a lesser remedy, such as the exclusion of evidence and/or severance of the charges, could not have cured any unfairness occasioned to the defendant.

4. Ordering a permanent stay without having first undertaken the weighing process required by law, which involves balancing the requirements of fairness to the accused with the legitimate public interest in the disposition of charges of serious offences and the conviction of persons guilty of such crimes, and the need to maintain public confidence in the administration of justice.

4. The Director correspondingly relies in this Court upon the following grounds of appeal with respect to Australian Total Security Pty Ltd (formerly known as ASAP Australian Security and Protection Pty Ltd). It is asserted that Magistrate Favretto erred in law by:

1. Failing to provide adequate reasons for his decision to dismiss CAN sequence 1.

2. Holding that any evidence or information obtained under the Security Industry Act could not be used (directly or indirectly) in a prosecution under related legislation such as the Firearms Act and the Firearms Regulations.

3. Ordering a permanent stay:

1. In respect of material that had not been compelled and was not in evidence before the court; and

2. In circumstances where there was no evidence before the court that a lesser remedy, such as the exclusion of evidence and/or severance of the charges, could not have cured any unfairness occasioned to the defendant.

4. Ordering a permanent stay without having first undertaken the weighing process required by law, which involves balancing the requirements of fairness to the accused with the legitimate public interest in the disposition of charges of serious offences and the conviction of persons guilty of such crimes, and the need to maintain public confidence in the administration of justice.

5. The Director relied upon the affidavit of Graham Hazlitt sworn on 22 June 2016, which was read without objection. The defendants did not tender any evidence.

Background

6. ASAP Armoured Pty Ltd (“Armoured”) is a security company that provided cash-in-transit services. It additionally supplied security guards to ASAP Australian Security and Protection Pty Ltd (“AusSec”), also a security company primarily involved in cash-in-transit services. Armoured supplied security guards to AusSec.

7. Armoured and AusSec share premises at Unit 5, 13 Berry Street, Clyde. Mr Dominic Collier was at all relevant times the sole director of Armoured and, until April 2014, a co-director of AusSec. Armoured and AusSec each held a NSW master security licence (which allowed the licensee to employ or provide licensed persons to carry out security activities). It is a condition of a master licence that the licensee will not allow an employed security guard to carry a firearm while carrying out security activity unless the security guard is wearing a recognisable security guard’s uniform while doing so.

8. Only AusSec held a firearm licence for business purposes. Armoured held no such licence. Neither Armoured nor AusSec has held a licence to possess prohibited weapons such as handcuffs or batons.

9. On 4 March 2014, Mr Andy Silva attended the Veterinary Clinic at Sydney University to carry out a covert cash delivery. A Sydney University security officer observed Mr Silva park his car and change into an orange shirt with the words “Post Contractor” on it. The officer also saw an object in Mr Silva’s belt. The officer had a conversation with Mr Silva, who said that he was “undercover private security”. Mr Silva pulled up his shirt to reveal a firearm. Mr Silva was unable to provide his security licence but told the officer that he worked for “ASAP Security Company”.

10. Police were called. Constables Devine and D’Apice arrived. They asked Mr Silva to produce his identification and security licence. Mr Silva produced his driver’s licence but was unable to produce his security licence. Police then searched Mr Silva and located a loaded semi-automatic Glock 22 pistol on his belt. When police searched his car, they found a white sign bearing the words “Australia Post”, other items with Australia Post branding, and items that confirmed that Mr Silva was carrying out cash-in-transit security activity, including cash bags and receipt books bearing the name of Armoured. Police seized the firearm and the other items.

11. Mr Silva was arrested for firearms offences and taken to Newtown Police Station. He participated in an electronically recorded interview with Constables D’Apice and Zahra (the latter of whom became the officer-in-charge/informant of the matters the subject of the proceedings).

12. During the interview, Mr Silva said that he worked for “Australian Armoured Security” and that he had been given the Australia Post shirt and the Australia Post contractor sticker for his car “for security purposes”. Mr Silva said that it was a condition of his employment with Armoured that he supply his own vehicle for carrying out cash-in-transit duties. He acknowledged that his car did not contain all of the safety devices required by the Security Industry Regulation. Constable Zahra suspended Mr Silva’s firearms licence. He was released from custody. He was subsequently charged with offences.

13. Following the incident on 4 March 2014, police conducted further investigations in respect of AusSec and Armoured. Those investigations were carried out in large part by Mr David Young and Sergeant Grahame Barlow. Mr Young was a senior compliance officer with the NSW Police Force’s Security Licensing and Enforcement Directorate (“SLED”). Sergeant Barlow was the firearms and security licence co-ordinator of NSW Police Force’s Alcohol Licensing Enforcement Command (“ALEC”).

14. On 7 March 2014, Mr Young went to the website asap.com.au and took screenshots. That website advertised covert services.

15. On 10 March 2014, Mr Young telephoned Mr Collier and advised him that on the following day he would be conducting an onsite audit under section 39 of the Security Industry Act of the premises of Armoured and AusSec for the purpose of determining whether there had been a contravention of the Security Industry Act. Mr Young then sent an email to Mr Collier, which asked him to have a number of documents and records available at the time of the compliance audit. Mr Young said he would be accompanied by another enforcement officer from SLED as well as two officers from ALEC, who would be “auditing the organisation’s firearm related matters”.

16. On 11 March 2014, Mr Young, Sergeant Barlow and Mr Swan from SLED attended the Clyde business premises of AusSec and Armoured. Mr Young and Mr Swan were in business attire and each wore NSW Police authorised enforcement officer photo identification on NSW Police Force lanyards. Sergeant Barlow was in police uniform.

17. Mr Young informed Mr Collier that he was using powers under s 39 of the Security Industry Act, and that “if he failed to comply with [their] requirements in furnishing records and information, he may be committing an offence”. Mr Young introduced Sergeant Barlow and said he (Barlow) was there to conduct certain inquiries in relation to the firearms licence of the companies. No further information was provided concerning the exercise of particular powers by Sergeant Barlow. However, as a police officer, Sergeant Barlow was an “enforcement officer” under the Security Industry Act and was entitled to exercise powers under it.

18. At the audit, Mr Young asked Mr Collier questions about the operations of the companies. Sergeant Barlow also had a conversation with Mr Collier regarding the firearms licences held by the companies and issues regarding compliance with the Security Licence. Sergeant Barlow examined the manner in which the firearms were stored at the premises.

19. During the audit, a number of documents were provided to police which related to Mr Silva’s employment with one or other of the companies and the services provided by them to Sydney University. The officers also inspected AusSec’s PAB 29 Transfers of Firearms and Ammunition Register. (This Register is required to be kept under cl. 81(1) (b) of the Firearms Regulation.)

20. On 20 March 2014, Sergeant Barlow returned to the Clyde premises accompanied by Senior Constable Sirol. Sergeant Barlow informed Mr Collier that they were exercising authority under s 42A of the Firearms Act. The officers asked Mr Collier to produce the PAB 29 register for inspection.

21. As the officers were taken into the secure firearm storage area, they observed an A4 sheet of paper attached to the door of a metal locker, which appeared to contain an equipment sign-out list that included handcuffs and extendable batons. Sergeant Barlow said to Mr Collier “Do you have any handcuffs and batons as part of your business?” Mr Collier indicated that he believed he was entitled to possess them for training and instruction. The metal locker was opened and emptied by Mr Collier. The officers identified three sets of handcuffs and four extendable batons. (These items are listed in Schedule 1 of the Weapons Prohibition Act and a permit is required to possess them.) Neither Mr Collier nor AusSec held a permit to possess those items.

22. Police seized the handcuffs and batons pursuant to s 39 of the Weapons Prohibition Act, which provides that police may seize a prohibited weapon if an officer has reasonable grounds to believe that an offence under the Weapons Prohibition Act or regulations has been or is being committed, and the officer is of the opinion that the prohibited weapon is connected with the offence. Police also seized the PAB 29 Register of Transfer of Firearms and Ammunition and the PAB 27 Register of Acquisitions, Disposal and Servicing of Firearms at this time.

23. On 26 March 2014, Ms Sharyn Byrnes, an officer from SLED, issued a notice to Armoured under s 23A(5)(b) of the Security Industry Act advising of the suspension of Mr Silva’s licence and seeking reasons why the master licence should not be revoked.

24. On 10 April 2014, Mr Young issued and posted Notices under s 39O of the Security Industry Act to AusSec and Armoured. These Notices required them to provide various records or information by 2 May 2014, later extended to 5 June 2014. On that day, Mr Graham (an officer of AusSec and Armoured) met with Mr Young and produced a USB device containing the information sought in the Notice being records relating to the operation of the companies, employee records, payslips, service agreements, financial statements, Standard Operating Procedures and a Risk Assessment for Sydney University.

25. On 6 July 2014, Mr Silva was served with a CAN alleging offences committed by him on 4 March 2014.

26. On 29 July 2014, AusSec was charged with the following offences:

1. That between 20 November 2013 and 4 March 2013 at Granville, AusSec did give a firearm Glock Pistol Model 22 serial number DGG860 to a person not authorised by licence/permit, to wit ASAP Armoured Pty Ltd contrary to s 50B of the Firearms Act (CAN sequence 1); and

2. That between 20 November 2013 and 4 March 2013 at Granville, AusSec did not keep in safe storage a firearm Glock Pistol Model 22 serial number DGG860 authorised to be possessed by security guards employed by the company when they were not on duty, AusSec being a company who employs security guards who are authorised to possess firearms contrary to s 77(1)(a) of the Firearms Regulation (CAN sequence 2).

27. Armoured was also charged with related offences on the same date as follows:

1. That on 20 March 2014 at Clyde, Armoured possessed or used a prohibited weapon, namely handcuffs, without a permit contrary to s 7(1) of the Weapons Prohibition Act (CAN sequence 1);

2. That on 14 March 2014 at Granville, Armoured possessed an unauthorised firearm, namely 5 Glock pistols, contrary to s 7(1) of the Firearms Act (CAN sequence 2);

3. That on 4 March 2014 at Granville, Armoured contravened a condition of its licence contrary to s 30 of the Security Industry Act, namely, that it permitted its employee to carry a firearm without wearing a recognisable security guard’s uniform (CAN sequence 3); and

4. That on 4 March 2014 at Granville, Armoured contravened a condition of its licence contrary to s 30 of the Security Industry Act, alleging various breaches of licence conditions concerning the vehicle used in security activities (CAN sequence 4).

28. On 11 August 2014, Mr Young issued a further notice under s 39O of the Security Industry Act to Sydney University. On 12 September 2014, Sydney University produced documents in response to that Notice.

29. On 10 December 2014, Mr Silva provided a written statement of interview to Senior Constable Zahra and Mr Young, and also participated in an electronically recorded interview. During that interview, Mr Silva made reference to a number of emails. Mr Silva sent those emails to Senior Constable Zahra the following day.

30. On 25 January 2015, AusSec and Armoured jointly provided an 88 page response to the notice of intention to revoke its licence. That response was subsequently sent to Mr Young, who on 7 April 2015 forwarded it to Sergeant Barlow. That document did not become evidence in the Local Court.

The Local Court hearing

31. The Local Court hearing proceeded over four days in June 2015. Evidence was called from Senior Constable Zahra, Sergeant Barlow, Senior Constable Ferguson, Senior Constable Sirol and David Young. (Further prosecution witnesses were foreshadowed to be called in the course of the hearing, including Mr Silva.)

32. On the first day of the hearing on 10 June 2015, counsel for the defendants explained that the issue in dispute in respect of sequence 1 (the charge relating to the batons and handcuffs) was whether the defendant possessed the batons and handcuffs, or whether those items were possessed personally by Mr Collier. Sequence 2 was withdrawn by the prosecution.

33. In the course of Mr Young’s evidence, which was taken partly on the voir dire, the companies each made an application for a permanent stay of the proceedings. The basis of the application was said to be “that the continuance of the proceedings would amount to an abuse of the Court’s processes, and thereby call into disrepute the very core of the criminal justice system”.

34. In the alternative, the companies submitted that the evidence obtained by the prosecution ought to be excluded, and that if it were excluded, there would be “such little remaining evidence to support the charges that to continue with the proceedings would amount to an abuse of process”, thereby justifying a permanent stay.

The Local Court decision

35. In written reasons delivered on 2 December 2015, Magistrate Favretto dismissed Armoured’s application for a permanent stay of CAN sequences 3 and 4. However, his Honour granted a permanent stay of sequence 1. (His Honour also purported permanently to stay sequence 2, but sequence 2 had already been withdrawn by the prosecution at the commencement of the hearing.)

35. In holding that sequence 1 should be permanently stayed, his Honour found that the Security Industry Act did not authorise the use of the powers given by s 39O and s 39Q to permit dissemination of records for the prosecution of offences under the Firearms Act and the Weapons Prohibition Act. His Honour also found that in March 2014, Mr Young considered that there was a “significant possibility” or a “real probability” that charges would be laid. Magistrate Favretto concluded that:

“The only inference and conclusion to be drawn from [Mr Young’s] evidence ... is that he was using his coercive powers not only to investigate the possible contraventions of the Act and Regulations but also whether the accuseds’ were fit and proper persons to hold a master licence. While as the Court has concluded that was permissible only for the purposes of the Act it was clear that he was including the possible offences under the Firearms Prohibition Act 1996 and the Weapons Prohibition Act 1998 in his investigation to assist Sgt Barlow and Senior Constable Zahra.”

37. His Honour concluded that:

“It follows that the use of the powers under ss 39O-39Q by Mr Young so far as concerns the Firearms Act and Weapons Prohibition Act offences was not permissible. However, the subsequent dissemination of the information and records he gathered (from the 11 March 2014 requirement under s 39Q and the 10 April 2014 Notice under s 39O) to Senior Constable Zahra and Sgt Barlow was not only impermissible under the Act but also a breach of the principle of legality. The breach is serious, substantial and grossly reckless when one considers the evidence of Sgt Barlow and more particularly Mr Young that they could not see any concerns about their conduct.”

38. His Honour considered that the information and records disseminated and adduced on the voir dire had been “improperly obtained” within the meaning of s 138 of the Evidence Act 1995. His Honour continued:

“The difficulty in this matter is that unlike R v Seller; R v McCarthy the impugned evidence has not only been disseminated to the prosecution but also the witnesses called to date (bar Constable Ferguson) and much of it tendered into evidence.”

39. His Honour referred to R v Seller; R v McCarthy and concluded that the accusatorial process had been “fundamentally altered” and that the proceedings to date had not only created an “actual manifest unfairness”, but would “do so for the continuation of the proceedings”.

40. His Honour acknowledged that the 88 page response furnished or provided by the companies was not made directly in response to a requirement under ss 39O-39Q of the Security Industry Act, but found nevertheless that the dissemination of that document to the prosecution “has substantially added to, and infected further unfairness in what was already an unfair process”. His Honour observed that the companies’ document was made “for the purposes of responding to the invitation by Ms Byrnes as [to] why the master licences should not be revoked and [had] nothing to do with the investigation of the offences”. His Honour also observed that no caution or warning had been given that any response would be disseminated or used in the investigation and prosecution of the offences. Although his Honour found that any admissions in the 88 page document should be rejected under s 90 of the Evidence Act, he considered that that did not resolve the “risk” that the prosecution would use it for other purposes such as non-admissions or any foreshadowed defence that it might have contained.

41. His Honour concluded:

“The result is that the risk of trial according to law cannot be alleviated by discretionary exclusion. Further the dissemination and use of the 88 page document combined with the existing breaches of the principle of legality together with the gross reckless nature of those breaches also fall within what Bathurst CJ said in R v Seller; R v McCarthy at [204] that warrants a stay: ‘Third, irrespective of whether or not unfairness is demonstrated, a stay may be granted if the proceedings in question are an abuse of process, in the sense that the use of the court proceedings brings the administration of justice into disrepute: X7 (No 2) at [93]’.”

42. His Honour recognised that a permanent stay should be rare, but concluded that the “accuseds simply cannot be given a trial according to law and apart from a permanent stay of proceedings there is nothing this Court can [d]o to alleviate the unfairness let alone the abuse of this Court’s jurisdiction”. His Honour then made orders staying the CAN sequences 1 and 2 against Armoured and other related charges against AusSec.

The Director’s submissions

Ground 1

43. A judicial officer is obliged to provide adequate reasons for a decision and the failure to do so constitutes an error of law: Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 at [43]; Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 at [44].

44. As Johnson J observed in Director of Public Prosecutions (NSW) v Wililo (2012) 222 A Crim R 106; [2012] NSWSC 713 at [56]:

“… it is part of the Magistrate’s duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict: Donges v Ratcliffe [1975] 1 NSWLR 501 at 507. In Moloney v Collins [2011] NSWSC 628, the Court said at [63]-[65] (in the context of a civil hearing in the Local Court):

‘[63] Failure to give reasons as required by law may itself disclose error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration.

[64] The duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].’”

45. Similar statements are to be found in cases such as Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 2062; [2013] NSWSC 1882 at [53] and Director of Public Prosecutions (DPP) v Abouali [2011] NSWSC 110 at [5]-[8].

46. In Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [116], Kirby J said that the reasons must permit “the persons affected, a court to which appeal may lie and the community [to be] aware of the essential chain of reasoning that brought about the judgment”. See also Stoker vAdecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at [41].

47. The Director somewhat uncontroversially maintained that the power to grant a permanent stay of proceedings is a power that should be rarely exercised, particularly having regard to the interests of the community and victims of crime in the enforcement of the criminal law: R v Seller; R v McCarthy at [204]. In a cognate context, reasons for judgment for the granting a permanent stay should be clearly expressed.

48. The Director submitted that his Honour’s reasons were inadequate in three respects.

49. First, his Honour held that the “impugned evidence” had been improperly obtained within the meaning of the Evidence Act. He did not state what the “impugned evidence” was, other than generally referring to “information and records disseminated” and “adduced on the voir dire”.

50. Secondly, his Honour concluded that the proceedings had been “totally infected with the impugned evidence”, including “foreknowledge of the accuseds’ defence”. However, he did not provide any reasons for that finding. Nor did he analyse how the impugned evidence had infected the proceedings or in what way it had disclosed the defendant’s defence.

51. Thirdly, his Honour concluded that the 88 page response by the defendants to the s 23A notice “substantially added to and infected further unfairness in what was already an unfair process”. He did not state what aspects of the 88 page response did so.

52. The Director contended that it was of critical importance that the Magistrate clearly identify the “impugned evidence” and the unfairness that was said to have resulted from its use by the prosecution in the Weapons Prohibition Act charge. The Director emphasised that the prosecution was conducted as a joint prosecution of charges under the Security Industry Act, the Weapons Prohibition Act and the Firearms Act against AusSec. No application appears to have been made for any of the charges to be severed under s 21 of the Criminal Procedure Act 1986.

53. Accordingly, the mere fact that compelled evidence was tendered and accepted into evidence says nothing about whether the evidence was used in respect of the Weapons Prohibition Act charge. Indeed, it is not apparent what evidence was necessary to the charge under the Weapons Prohibition Act beyond the evidence that Sergeant Barlow and Senior Constable Sirol inspected the defendant’s premises (exercising powers under s 42A of the Firearms Act); that the officers observed the presence of the handcuffs and batons; and the evidence that the defendant did not have a permit to possess those weapons.

54. It was also said to be significant that the “information and records disseminated” appears to have included both answers given by employees of the defendant and the production of documents. The production of documents raises different issues to the compulsory interrogation of natural persons. As the majority judgment observed in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 320 ALR 448; [2015] HCA 21 at [38]:

“The documents required to be discovered speak for themselves. In the nature of things, such documents have been brought into existence in the course of the conduct of the corporation’s affairs by or through other (natural) persons acting in the service of the corporation. In such a case, the concerns that testimonial admissions may be extracted by oppressive conduct and that confessions of dubious reliability will be adduced do not arise.”

55. Further, it is also necessary to separate the answers and documents provided by Armoured and AusSec respectively from those provided by the other or by entities such as Sydney University and Mr Silva. There was no clear articulation of how compelled evidence obtained from Armoured or AusSec had “infected” the obtaining of evidence from these other entities. Even if, contrary to ground 2, the Security Industry Act did not permit the use or derivative use of documents for charges under related legislation, in the absence of evidence that the compelled evidence had infected the obtaining of evidence from these other entities, the fact that evidence was obtained from other entities could not justify a permanent stay.

56. In summary, in the absence of a statement as to precisely what was encompassed by the reference to “impugned evidence” and in the absence of any identification of the prejudice occasioned by it, the Magistrate’s reasons do not “adequately reveal the basis of the decision, expressing the specific findings that are critical to the termination of the proceedings”. Nor is it possible to discern “the essential chain of reasoning that brought about the judgment”. These deficiencies constitute an error of law.

Ground 2

57. The companies contended that the evidence and information obtained in the exercise of the coercive powers under the Security Industry Act was improperly obtained. They argued that the Act did not permit evidence obtained in this fashion to be used in any prosecution under the Security Industry Act or any other Act.

58. Magistrate Favretto rejected the submission that evidence and information obtained under the Security Industry Act could not be used in criminal proceedings with respect to a contravention of that Act or the regulations. It was for that reason that his Honour rejected the companies’ application for a permanent stay of sequences 3 and 4, being the charges under the Security Industry Act.

59. The Director contended, therefore, that his Honour’s finding that the evidence was “improperly obtained” could not relate to the use of that information in respect of the charges against Armoured, alleging offences under the Security Industry Act. That finding could only relate to the use of that information in respect of the Weapons Prohibition Act charge. His Honour concluded that the Security Industry Act did not permit the use of s 39O or s 39Q powers for a Weapons Prohibition Act charge, and that the Security Industry Act did not permit dissemination of evidence obtained pursuant to those powers to Constable Zahra and Sergeant Barlow.

60. His Honour did not particularise or specify the evidence that was said to have been improperly disseminated in this way. The Director maintained that as both men were police officers investigating possible offences under the Security Industry Act as well as the Firearms Act and the Weapons Prohibition Act, it could not be said that the mere dissemination of evidence obtained pursuant to the coercive powers was improper. In any event, the Director maintained that there could be no restriction upon the use to which evidence acquired pursuant to the coercive powers under the Security Industry Act could be put in the prosecution of alleged offences under either of the other Acts.

61. The Director sought to distinguish the legislation considered in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 and Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 inasmuch as the Security Industry Act contains no express provision concerning the use or dissemination of evidence or information obtained pursuant to its provisions. In the present cases the Director emphasised that Magistrate Favretto correctly held that the evidence obtained under the Security Industry Act could be used in criminal proceedings alleging a contravention of that Act. However, the Director maintained that a proper consideration of the provisions of that Act as a whole gave no indication of a legislative intention to restrict or prohibit the wider use of information obtained from a defendant complying with s 39O or s 39Q of that Act. This was said to be particularly so where the prosecution concerned matters that were closely connected to security activities.

62. The Director contended that the powers conferred by the Security Industry Act were “broadly expressed”. They included not only powers to be used for the purpose of determining whether there has or has not been compliance with the Act and regulations but also for “generally administering the Act”: s 39I. Charges brought under the Firearms Act or the Weapons Prohibition Act were said to be “closely related” to the scope and purpose of the Security Industry Act. For example, the possession of firearms is encompassed by the expression “security activity” as defined by s 4 of the Security Industry Act. Moreover, a conviction for an offence under firearms legislation automatically disqualifies an applicant from holding a licence under that Act: see s 15 and cl 18 of the Security Industry Regulation.

63. The Director emphasised in this context that the task of statutory construction must begin and end with a consideration of the text of the statute, in its context, including the legislative history and extrinsic materials: Theiss v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12.

Ground 3(a)

64. The Director submitted that his Honour was in error to the extent that his decision to order a permanent stay of the charges was based upon the fact that the police were provided with a copy of the companies’ 88 page response to the s 23A notification. This was said to have been an important factor in his Honour’s decision to order the stay.

65. First, there was no impropriety in the police receipt of the response: it was not obtained pursuant to an exercise of any of the compulsory powers in the Security Industry Act.

66. Secondly, the fact that it came into police possession was not the result of any unfairness. The companies were not given any assurance of confidentiality when the response was provided and there was no suggestion that any such assurance had been sought.

67. Thirdly, his Honour was said to be in error in holding that the dissemination of the response to Constable Zahra and Sergeant Barlow “was not only impermissible under the Act but also a breach of the principle of legality”. That principle has no such free standing operation and is only a “principle of construction”: R v Independent Broad-based Anti-corruption Commissioner (2016) 329 ALR 195; [2016] HCA 8 at [40]; Lee v Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [314]. The principle of legality is not capable of being breached by the officers and is only relevant to the construction of the statute.

Ground 3(b)

68. It is well established that a permanent stay is a remedy of “last resort” that should be “rarely exercised”: R v Seller; R v McCarthy at [204]. His Honour clearly recognised this. However, the Director contended that he failed to give proper consideration to whether a lesser remedy, such as the exclusion of the offending material and/or the severance of the charges against AusSec from those against Armoured, would have cured any unfairness that may have been occasioned. A number of cases have recognised that a stay should not been granted where the Director of Public Prosecutions has taken steps to brief lawyers who have not been provided with the compelled evidence: see Edmondson v The Attorney General of NSW [2014] NSWLC 18 and R v Seller; R v McCarthy.

69. The Director contended in the alternative that even if it were accepted that there is evidence that could not or should not be used, whether directly or indirectly, in the prosecution case, the appropriate remedy would be to order a temporary stay of proceedings until the prosecution had obtained representation that had been quarantined from the compelled evidence. It would also in such circumstances be necessary to order a severance of the charges under s 21 of the Criminal Procedure Act, in view of his Honour’s conclusion that the compelled evidence was admissible in respect of the Security Industry Act charges. The Director maintained that, contrary to his Honour’s finding, the mere fact that a witness was aware of compelled evidence would not, of itself, render that witness unable to give evidence. There could only be a basis for excluding the witness’ evidence if it was itself “infected” by the compelled evidence.

Ground 4

70. The Director contended that even if his Honour had properly determined that there was relevant unfairness to either of the defendants, he erred in ordering a permanent stay without having first undertaken the weighing process required by law. That process involves balancing the requirements of fairness to the accused with the legitimate public interest in the disposition of charges of serious offences and the conviction of those guilty of such crimes, and the need to maintain public confidence in the administration of justice: see Walton v Gardiner (1993) 177 CLR 378 at 395-6; [1993] HCA 77. The Director submitted that “on no reasonable reading” could it be said that his Honour’s judgment engaged in the exercise required. He does not refer to it. Moreover, his Honour’s references to the several passages from R v Seller; R v McCarthy amount to no more than a statement of the general propositions relating to the remedy of a permanent stay.

The companies’ response

General

71. His Honour ordered that there be a permanent stay in respect of:

1. One charge against Armoured relating to possession of handcuffs and batons contrary to the Weapons Prohibition Act;

2. Two charges against AusSec:

1. relating to a Glock pistol being in the possession of Armoured as the alleged employer of Mr Silva contrary to s 50B(1) of the Firearms Act; and

2. being a company that employs security guards who are authorised to possess firearms, not keeping them in safe storage contrary to reg 77(1)(a) of the Firearms Regulation.

72. The remaining charges relating to alleged breaches by Armoured of the Security Industry Act remain on foot to be heard in the Local Court.

Ground 1

73. The companies submitted that there had been no failure by Magistrate Favretto to give reasons in accordance with applicable authority. They drew attention to the following passage from Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41]:

“[41]…the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.”

74. In Director of Public Prosecutions (NSW) v Richardson [2015] NSWSC 1753, Schmidt J said this at [21]:

“[21] As well as stating his conclusions, what was also necessary for his Honour to do was to give an explanation of the basis on which the conclusions he had reached on each issue lying between the parties rested, by reference both to the relevant evidence and the applicable law.”

75. These principles are not controversial. The companies contended, however, that the adequacy of reasons was something that had to be considered and assessed in the context of what it was that his Honour was asked to decide. In the present cases, that was limited to an application for permanent stays of proceedings. In undertaking that task, his Honour had to identify and consider:

1. The legal principles relating to an application for a permanent stay.

2. The relevant evidence and facts to which the principles were to be applied.

3. Whether, in the circumstances, viable alternatives existed that could be implemented instead of ordering a permanent stay.

76. The companies emphasised that the question of whether or not to grant a permanent stay involved a consideration of the application of the fundamental principle that the onus rests upon the prosecution alone to establish the guilt of an accused person who cannot and should not be compelled to assist in that task. The position is only different if or where the legislature has expressly or by necessary implication or intendment abrogated that fundamental protection.

77. The companies also submitted that an analysis of whether or not a particular decision is or is not correct cannot be relevant to the very different inquiry concerning the adequacy of a judge’s reasons in arriving at it. The ultimate correctness of a decision is not necessarily a function of the adequacy or even the existence of reasons to support it.

Ground 2

78. His Honour determined, contrary to the submissions of the companies, that the coercively obtained material and information could be used in the prosecution case based upon alleged contraventions of the Security Industry Act. That was a finding that only concerned Armoured as AusSec had not been charged with any contravention of that Act. His Honour concluded, however, that such coercively obtained material could not be used for purposes other than the administration of that Act, or the determination or adjudication of allegations of non-compliance with it. That was because s 39O authorised the coercive provision of information or records for purposes that included “determining” compliance, not merely “investigating”, which required fact finding and therefore by extension encompassed proceedings under the Act. The companies contended that his Honour’s opinion about the use of coercive powers given by s 39O and s 39Q followed upon a considered application of the proper construction of the Security Industry Act and an application of decisions such X7 and R v Seller; R v McCarthy.

Ground 3(a)

79. His Honour was aware that the 88 page document was not produced in response to a requirement under Part 3B of the Security Industry Act, but he considered that its “dissemination to the prosecution…substantially added to, and infected further unfairness in what was already an unfair process”: at [66]. His Honour’s concerns extended to the document received by SLED, provided to Mr Young, and then passed on the Sergeant Barlow because Mr Young considered that it might identify aspects of the companies’ defence, as appears in the following extract from the transcript in the Local Court to which his Honour specifically referred:

“Q. Now having refreshed your memory as to what you did with that information at least so far as Sergeant Barlow is concerned, do you think it’s appropriate disseminating the 88 page response by the companies to prosecutors in this case in furtherance of when you knew there were criminal proceedings, do you think that that was appropriate?

A. Yes.

Q. Do you think it was appropriate because it might identify what the defendants’ defence might be?

A. Yes, that was certainly a consideration.”

80. The companies emphasised that this would appear to have been an additional concern for his Honour but was not the critical factor warranting the grant of a permanent stay: his Honour would clearly have ordered a stay without this added factor. His Honour indicated that he would exercise his discretion pursuant to s 90 of the Evidence Act with respect to the 88 page response (at [66]), but he remained concerned as to the use to which the document would or could be put by the prosecutor.

Ground 3(b)

81. The companies emphasised that his Honour was obviously aware that a permanent stay should only be ordered in rare and exceptional circumstances, and that its effect was tantamount to not exercising jurisdiction. He gave consideration to discretionary exclusions of the evidence, such as s 90 of the Evidence Act and s 138 of that Act, where the evidence had arguably been improperly obtained. His Honour’s ultimate conclusion was that “the only remedy to redress the abuse of process is a permanent stay”: at [68]. In so doing, his Honour demonstrated that he necessarily considered alternative solutions but concluded that none was available to him in the circumstances. The companies submitted that it was not necessary for his Honour to specify or discuss each alternative before setting out his conclusion.

82. So far as a temporary stay to enable the prosecutor to obtain a new prosecution team was concerned, his Honour dealt with this at [63] of his reasons. He drew a contrast with R v Seller; R v McCarthy, and concluded that the dissemination of material had extended beyond just the prosecutorial team to witnesses so that it was not possible fairly or practically to quarantine the evidence in the way Mr Tang’s evidence had been dealt with in that case. His Honour was most concerned that the companies could not receive a fair trial.

Ground 4

83. The companies relied upon their previous submissions as a sufficient answer to this ground.

Consideration

Ground 1

84. His Honour’s judgment commenced with a summary of the issue:

“[2] Both accused seek a permanent stay of the proceedings against each of them on the basis that the investigation and subsequent dissemination of information and records (obtained by coercive means) to investigating police (including the prosecutor) and the use of that information and records in these proceedings offends the ‘Principle of legality’: see X7 v Australian Crime Commission [2013] HCA; 248 CLR 92; Lee v R [2014] HCA 20; 308 ALR 252. The accused argue that the breaches have so infected the prosecution that the accusatorial process (that it is for the prosecution to prove guilt) has been so fundamentally altered that the continuation of these proceedings amounts to an abuse of process and warrants a permanent stay. In the alternative the accused argue that if a permanent stay is not ordered, that the improperly or unlawfully obtained evidence should be excluded under s 138 of the Evidence Act 1995.”

85. His Honour proceeded thereafter at some considerable length to review the evidence. He came to the view, after considering what he described as “the coercive powers” in ss 39O–39Q of the Security Industry Act that the Act fundamentally altered the accusatorial process and allowed the information and records gathered by coercive means under those sections to be used in criminal proceedings for contravention of the Security Industry Act and its Regulations. However, his Honour concluded that the powers contained in those sections did not allow the use or dissemination of information gathered in that way for the purposes of prosecution of offences under either the Firearms Act or the Weapons Prohibition Act. His Honour explained why he had come to that conclusion.

86. His Honour then considered, in the light of his conclusions about the relevant provisions, whether a permanent stay should be granted. At the risk of too much detail, it is instructive to see what his Honour said in this respect. It was as follows:

“[63] At the least the information and records disseminated and those adduced on the voir dire (the impugned evidence) have been improperly obtained within the meaning of s 138 of the Evidence Act. The difficulty in this matter is that unlike R v Seller; R v McCarthy the impugned evidence has not only been disseminated to the prosecution but also the witnesses called to date (bar Constable Ferguson) and much of it tendered into evidence. The Court accepts the submission of the accused that these proceedings have been totally infected with the impugned evidence, including foreknowledge of the accuseds’ defence

[64] To adopt what Bathurst CJ said in R v Seller; R v McCarthy as the second proposition (at [200]) the issue is not whether these proceedings are unfair but whether the accused can have a trial according to law (see also Fullerton J at [232]-[234]). The difficulty in this matter is this Court cannot see how the risk to a fair trial can be alleviated as was the case in R v Seller; R v McCarthy. It is instructive to adopt the words of the court in R v Seller; R v McCarthy … at [204]:

[204]    Sixth, the authorities dealing with the question of the grant of a permanent stay emphasise three matters. First, the power is one that will rarely be exercised. This is unsurprising having regard to the interests of the community and the victims of crime in the enforcement of the criminal law: X7 (No2) at [91]. Second, a stay will only be ordered where there is a fundamental defect of such a nature that there is nothing a judge can do in the context of a trial to relieve against its unfair consequences: X7 (No2) at [92]. Third, irrespective of whether or not unfairness is demonstrated, a stay may be granted if the proceedings in question are an abuse of process, in the sense that the use of the court proceedings brings the administration of justice into disrepute: X7(No2) at [93].

[65] Considering those propositions, not only has the accusatorial process been fundamentally altered but in these particular circumstances the proceedings to date have not only also created an actual manifest unfairness but will do so for the continuation of the proceedings.

[66] While the Court accepts that the 88 page response by the accused was not directly in response to a requirement under ss 39O-39Q nevertheless its dissemination to the prosecution has substantially added to, and infected further unfairness in what was already an unfair process. The dissemination and use of the accuseds’ response cannot be separated from the entirety of this investigation and prosecution. That response was made for the purposes of responding to the invitation by Ms Byrnes as why the master licences should not be revoked and nothing to do with the investigation of the offences. There had already been liaison between Ms Bynes and Mr Young and dissemination of some information provided to the first show cause notice which alerted the prosecution of the accuseds’ defence. No caution or warning was given that any response would be disseminated and used in the investigation and prosecution of the offences. In these circumstances the Court is satisfied that any admissions in the 88 page response should be rejected under s 90 of the Evidence Act 1995. However, that does not resolve the risk that the prosecution has used (or will use if the accused give evidence) any non-admissions or signalled defence in the 88 page document, such as the questioning by Mr Silva. It was obviously a concern to the hearing prosecutor Mr Howard because he asked Mr Young to obtain legal advice from the Office of General Counsel as to whether the 88 page response should be given to him another police.

[67] The result is that the risk of a trial according to law cannot be alleviated by discretionary exclusion. Further the dissemination and use of the 88 page document combined with the existing breaches of the principle of legality together with the gross reckless nature of those breaches also fall within what Bathurst CJ said in R v Seller; R v McCarthy at [204] that warrants a stay:

‘Third, irrespective of whether or not unfairness is demonstrated, a stay may be granted if the proceedings in question are an abuse of process, in the sense that the use of the court proceedings brings the administration of justice into disrepute: X7 (No.2) at [93].’

[68] The Court is mindful that the grant of a permanent stay should be rare as it is tantamount to this Court not exercising jurisdiction. However, on each of the second and third propositions identified by Bathurst CJ (see at [204] above) this is a matter where a continuation of the proceedings does amount to an abuse of process and the only remedy to redress the abuse of process is a permanent stay. The accuseds simply cannot be given a trial according to law and apart from a permanent stay of proceedings there is nothing this Court can do to alleviate the unfairness let alone the abuse of this Court’s jurisdiction.

[69] For these reasons the Court orders that proceedings on CAN Sequences 1 and 2 against Armoured and CAN Sequences 1 and 2 against AusSec be permanently stayed.

[70] The Court will hear the parties concerning the conduct of the remaining CANs alleging offences against the Act and Regulation.”

87. Doing the best I can it seems to me that his Honour’s reasoning is clear. I have not reproduced his Honour’s judgment in full in these reasons. However, a review of that decision makes it plain that his Honour considered that the investigative process had been compromised because there was a chance that information gathered pursuant to what he described as the coercive powers under the Security Industry Act could or might be used for prosecutions under the Firearms Act or the Weapons Act. It is clear that the Director contests the correctness of his Honour’s decision. It is not, however, clear to me that his Honour has failed adequately to explain how he arrived at his conclusions.

88. The authorities make it clear that the judicial duty to give reasons does not require the judge or magistrate to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision with specific reference to findings that are critical to the determination. In my opinion his Honour has done precisely that.

89. With respect to the Director’s argument, care has to be taken to discriminate between dissatisfaction or disagreement with the decision on the one hand and a contention that the decision maker has failed to explain his or her reasoning process on the other hand. As the other grounds of appeal upon which the Director proceeds tend to indicate, his Honour’s decision was sufficiently understood to permit of several discrete attacks upon its correctness. If the Director has any basis for mounting an attack upon his Honour’s judgment, the line of attack is more profitably directed to substance than form.

90. I am satisfied that his Honour’s reasons are adequate.

Ground 2

91. Sections 39O and 39Q of the Security Industry Act is in these terms:

“39O Requirement to provide information and records

(1)    An enforcement officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice for the following purposes:

(a)    for determining whether there has been compliance with, or a contravention of, this Act or the regulations,

(b)    generally for administering this Act.

(2)    A notice under this section must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.

39Q Power of enforcement officers to require answers and record evidence

(1) An enforcement officer may require a person whom the enforcement officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for a purpose referred to in section 39O to answer questions in relation to those matters.

(2)    The Commissioner may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purpose of answering questions under this section.

(3)    An enforcement officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(4)    The place and time at which a person may be required to attend under subsection (3) is to be:

(a)    a place or time nominated by the person, or

(b)    if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the enforcement officer that is reasonable in the circumstances.

(5)    An enforcement officer may cause any questions and answers to questions given under this section to be recorded if the officer has informed the person who is to be questioned that the record is to be made.

(6)    A record may be made using sound recording apparatus or audio visual apparatus, or any other method determined by the enforcement officer.

(7)    A copy of any such record must be provided by the enforcement officer to the person who is questioned as soon as practicable after it is made.

(8)    A record may be made under this section despite the provisions of any other law.”

92. It is uncontroversial that s 39O does not contain a specific limited use provision. The question is whether or not the described purposes for which the information must be furnished necessarily or in some way constrain or restrict the use to which the furnished information can be put. Put another way, as the Security Industry Act contains no provisions at all relating to the dissemination of records or information obtained by compulsion, or any provision concerning the use of such records or information outside the limited purposes of the Act, does such a power to do so arise by necessary intendment?

93. In Lee v The Queen at [32]–[33] the High Court said this:

“[32] Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that ‘no attempt to whittle it down can be entertained’ albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

[33] The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.”

94. In X7, Hayne and Bell JJ observed at [86]–[87] that by the application of the principle of legality, as a matter of construction, a statutory provision would only be interpreted as effecting a fundamental alteration to the process of criminal justice if the legislature expressed itself “clearly by express words or necessary intendment”.

95. In Melbourne Corporation v Barry (1922) 31 CLR 174; [1922] HCA 56 at 206, Higgins J said:

“If a statute is capable of being interpreted without supposing that it interferes with the common law right, it should be so interpreted.”

96. The Security Industry Act does not, in words of necessary intendment or implication, mandate, direct, authorise, or otherwise permit the dissemination of information or records coercively obtained other than for the express and limited purposes described in s 39O(1). The Director’s contention at its highest is that the coercive powers are “broadly expressed” so that the Weapons Prohibition Act and Firearms Act charges concerned matters “closely related” to the scope of the Security Industry Act in the sense that possession of the offending items encompassed the phrase “security activity” in s 4 of the Security Industry Act. An examination of that section does not in my opinion support the Director’s contention. Significantly, the definition of “security activity” is extensive but does not, perhaps understandably, refer at all to the Firearms Act or the Weapons Prohibition Act at all, and only refers to firearms in the course of one of the descriptors of “security activity”, namely, “patrolling, protecting or guarding any property, by physical means (which may involve the use of dogs or the possession or use of firearms)”. It is to my mind a stretch to conclude that that reference draws in either the Firearms Act or the Weapons Prohibition Act in any applicable sense. This somewhat incidental reference to firearms does not in my view lead to the conclusion that a proper interpretation of the Security Industry Act by necessary intendment authorises the wider dissemination or use of material coercively obtained for s 39O(1) purposes.

97. In X7, Kiefel J at [158] said:

“[158] The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.”

98. Provisions that use almost identical language to Part 3B of the Security Industry Act can be found in Chapter 7 of the Protection of the Environment Operations Act 1997. Section 184 of that Act sets out the “purposes for which powers under Chapter may be exercised”:

“184 Purposes for which powers under Chapter may be exercised

Powers may be exercised under this Chapter for the following purposes:

(a)    for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act,

(b)    for obtaining information or records for purposes connected with the administration of this Act,

(c)    generally for administering this Act and protecting the environment.”

99. The words used in s 184(a) and (c) are almost identical to ss 39I and 39O of the Security Industry Act, apart from certain additional matters that are not presently relevant. Chapter 7 of the Protection of the Environment Operations Act and Part 3B of the Security Industry Act have many similarities. The companies however argued that the differences between them speak strongly against the interpretation of Part 3B urged by the Director.

100. Unlike the Security Industry Act, the Protection of the Environment Operations Act expressly refers to other specific legislation in respect of which information or records may be sought. Section 186 provides as follows:

186 Extension of Chapter to other environment protection legislation

This Chapter extends to the exercise of powers in connection with the following legislation:

(a)    Waste Avoidance and Resource Recovery Act 2001 and the regulations under that Act,

(b)    Ozone Protection Act 1989 and the regulations under that Act,

(b1)    Pesticides Act 1999 and the regulations under that Act,

(b2)    Radiation Control Act 1990 and the regulations under that Act,

(b3)    Snowy Mountains Cloud Seeding Act 2004 and the regulations under that Act,

(c)    any repealed provision of any Act or regulation amended or repealed by this Act, in respect to offences committed against the Act or regulation before its repeal or in respect of any other matter that continues to have any force or effect (except as provided by or by regulations under Schedule 5),

(d)    any provision of the Pesticides Act 1978 in respect of offences committed under that Act (before its repeal by the Pesticides Act 1999) or in respect of any other matter that continues to have any force or effect (except as provided by regulations under Schedule 5 or under Schedule 2 to the Pesticides Act 1999).

Accordingly, a reference in this Chapter to this Act or the regulations includes a reference to each of those Acts or regulations.”

101. The “Chapter” referred to is Chapter 7, and includes notices that can be issued requiring the provision of information and records. Decisions relating to the application of Chapter 7 notices arguably inform the application of the identically worded coercive information gathering provisions in Part 3B of the Security Industry Act.

102. The coercive powers under the Protection of the Environment Operations Act have been the subject of considerable judicial scrutiny, in particular in the Land and Environment Court.

103. In Wyong Shire Council v Hughes [2000] NSWLEC 5, the plaintiff prosecutor sought to justify its subpoena issued to the defendant upon the basis that a Chapter 7 notice under the Act abrogated the privilege against self-incrimination. The present proceedings do not concern the privilege against self-incrimination but Lloyd J’s observations are instructive regarding the general application of the legislation. At [13]-[14] his Honour said:

“[13] Sections 181 and 212 are found in Chapter 7 of the Protection of the Environment Operations Act. The several subsections of s 212 refer to ‘a requirement under this Chapter’ to furnish information. The requirement relied upon by Mr Berveling is that which is referred to in s 191, being in this case a requirement to furnish such records as the prosecutor requires ‘in connection with any matter relating to its responsibilities under this Act’.

[14] I have noted that the summons charges the defendant with an offence against s 5 of the Environmental Offences & Penalties Act. There is nothing in Chapter 7 of the Protection of the Environment Operations Act which enables the prosecutor to require the production of records relating to its responsibilities under another Act. That is to say, ss 191 and 212 on their face plainly apply only to functions under that Act. Mr Berveling has not referred to or relied upon any other enabling provision.”

104. In Southon v Beaumont [2008] NSWLEC 12, Jagot J considered an application to set aside a Chapter 7 notice. In upholding the validity of the notice her Honour referred to the source and scope of the coercive power in these terms:

“[37] Section 203(5) does not contain a freestanding power. The power in s 203(5) relates to ‘questions under this section’. The reference to ‘questions under this section’ invokes s 203(1). Section 203(1) concerns information reasonably required for the purposes of the POEO Act (and, through s 156B(3)(b) of the NPW Act, for the purposes of the national parks legislation). Section 203 must be construed recognising its function within the scheme of the POEO Act (and, by extension, the national parks legislation) as a whole.”

105. Section 156B of the National Parks and Wildlife Act 1974 expressly referred to the appointment of authorised officers pursuant to Chapter 7 of the Protection of the Environment Operations Act, with the express power to use the coercive powers under Chapter 7, thereby expressly conferring on the Protection of the Environment Operations Act powers and jurisdiction beyond the prescriptive limits described in s 184. No equivalent provision exists in the Security Industry Act, the Weapons Prohibition Act or the Firearms Act or the Regulations.

106. In D’Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260, the validity of a coercive notice issued under Chapter 7 of the Protection of the Environment Operations Act relating to dead birds was upheld on the basis of the extended jurisdiction conferred by s 186, which expressly enlivened the provisions of the Pesticides Act 1999, and which were described by Pain J as “companion provisions”. There are no “companion provisions” to the Security Industry Act.

107. A consideration of Chapter 7 of the Protection of the Environment Operations Act shows the source of the power to require the furnishing of information and records, and the limited and prescribed purposes for which that coercive power can be exercised. To the extent that the coercive power can legitimately be used outside of the prescribed purposes, the Protection of the Environment Operations Act expressly identifies the extended purposes of operation of those powers. No such provisions exist in respect of the Security Industry Act.

108. The companies argued that if Parliament had intended to provide those administering the Security Industry Act with coercive powers in respect of other legislation, such as the Firearms Act or Weapons Prohibition Act, it would have done so in much the same way as was done in the Protection of the Environment Operations Act. It is instructive to note that the Protection of the Environment Operations Act has been amended from time to time to expand the operation of its Chapter 7 coercive powers to include specific additional legislation. Relevantly, for instance, in 2012 Chapter 7 of the Act was amended to bring the Snowy Mountain Cloud Seeding Act 2004 within the ambit of s 186. Part 3B of the Security Industry Act (which contains its coercive information gathering powers) was inserted pursuant to the Security Industry Amendment Act 2012, in the same year as that amendment to the Protection of the Environment Operations Act, and yet omits the carefully and expressly worded provisions of that Act utilised to expand the scope of almost identically worded provisions.

109. Similarly, as with the “companion provisions” to Chapter 7 of the Protection of the Environment Operations Act, such as the National Parks and Wildlife Act, neither the Weapons Prohibition Act nor the Firearms Act (or Regulations) contains any provisions incorporating Part 3B of the Security Industry Act.

110. It appears to me that the use of the coercive powers provided by s 39I and s 39O of the Security Industry Act to obtain evidence for the prosecution of criminal offences under different Acts is not in furtherance of the limited purposes set out in those sections. There is nothing else within the Security Industry Act that gives Part 3B the expanded operation suggested by the Director. In the absence of clear words (such as those used in the Protection of the Environment Operations Act) or some necessary implication, it ought not to be read in the expansive way suggested by the Director.

111. In R v OC [2015] NSWCCA 212 at [97]–[102] the Chief Justice said this:

“[97] It was not disputed by the CDPP that it is a fundamental principle of the accusatorial system of criminal justice that the prosecution must discharge the onus of proof and that the prosecution cannot compel the accused to assist it in the discharge of this onus: X7 at [101]-[102], [124], [159]; Lee (No 2) at [32]-[33]. Further, the principle remains even if the privilege against self-incrimination has been wholly or partly abrogated: Lee (No 2) at [33].

[98] It was also accepted that the privilege against self-incrimination remains, at least so far as direct use of the self-incriminatory material is concerned. However, the provision of the transcript of a s 19 examination to those responsible for the prosecution of an examinee fundamentally alters the accusatorial judicial process, which begins with the laying of a charge and culminates in a criminal trial: X7 at [124].

[99] A fundamental alteration of this nature made by legislation can only be made by clear words or necessary intendment: X7 at [125]; Potter v Minehan [1908] HCA 63; 7 CLR 277 at 304; Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40; 221 CLR 309 (Electrolux Home Products) at [19]-[21]. As was pointed out by Crennan and Kiefel JJ in Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [512], the principle of legality at common law requires that a statutory provision effecting such fundamental rights (in that case the presumption of innocence) be construed, so far as the language of the provision allows, to minimise or avoid displacement of the principle: see also French CJ at [43]. It has been pointed out on a number of occasions that general words will rarely be sufficient to alter such rights if they do not specifically deal with the question: Bropho v State of Western Australia [1990] HCA 24; 171 CLR 1 at 18; Coco v The Queen (1993) 179 CLR 427, 437-438.

[100] In Coco, the majority stated that the principle may be displaced by necessary implication ‘if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless’: at 438. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543, McHugh J pointed out, at [43], that courts will hold that legislation alters such rights by necessary implication if the object of the provision would be largely frustrated if the right, freedom or immunity was to be preserved.

[101] In Lee (No 1), Gageler and Keane JJ, after citing the passages from Electrolux Home Products to which I have referred above in par [99], stated that while the principle of legality extends to the protection of fundamental principles, it should not be extended beyond its rationale ‘to protect from inadvertent and collateral alteration [of] rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government’: at [313]. They went on to make the following remarks:

‘[314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.’ [Internal citations omitted]

[102] Nonetheless, the implication must be necessary and will not arise merely because it may be seen as available or desirable: X7 at [142].

[103] The ASIC Act does not expressly provide that persons actually involved in the prosecution of a person who has been compulsorily examined can have access to the transcript of the examination. Therefore, it is necessary to consider whether the ASIC Act has provided so by necessary implication, in accordance with the principles to which I have referred above. Construction of the ASIC Act must begin with a consideration of the text itself. It will also require consideration of the context of the ASIC Act, including the general purpose and policy of the relevant provisions: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69].”

112. General words will rarely be sufficient to alter the type of fundamental rights that are presently at issue. The principle of legality may be displaced by necessary implication but only “if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless”.

113. In Worrall v The Commercial Banking Company of Sydney Ltd (1917) 24 CLR 28, the Court said at 32:

“Necessary intendment only means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable”.

114. The Director does not argue that Part 3B would become either inoperative or meaningless in the absence of the alteration to the companies’ fundamental common law rights. Nor does the Director suggest why or how the companies’ reading of Part 3B would be wholly unreasonable without the enlarged and imprecise operation of Part 3B contended for by him.

115. The learned Magistrate was in my view correct in his conclusion that, in the absence of express words (or necessary intendment) the coercive provisions of the Security Industry Act do not extend to the Firearms Act or the Weapons Prohibitions Act.    

Ground 3(a)

116. The Director’s argument with respect to this sub-ground is directed at the substance or content of the material or “evidence” that has been produced as a response to the exercise of coercive powers under the Security Industry Act. The Director in effect argues that the material was not before the Local Court, in the sense that it was not tendered as an exhibit having regard to the way in which the litigation had proceeded in that court, so that his Honour’s conclusions about the extent of the operation of s 39O and s 39Q were invalid. Put another way, the Director argues that his Honour could not legitimately have reached his conclusions, or granted a permanent stay, without access to and consideration of the very material in question. In other words, the exercise upon which his Honour had embarked was not purely an exercise of statutory construction.

117. If that contention is pressed I am not inclined to accept it. The anterior question of the proper construction of the Security Industry Act is at the heart of his Honour’s conclusions and of this appeal. It has been dealt with as ground 2. That task of statutory construction is not, and should not be, conflated, by way of specific example in the present case, with the significance or otherwise of the allegedly offending material. The operation of the coercive powers in s 39O and s 39Q cannot be reliably informed or influenced by the nature or particulars of the evidence, the extended use of which the companies in this case seek to impugn or restrict. The words of the Act must be interpreted and understood without regard to the alleged or even apparent significance of the impugned evidence for the parties or to any view of its significance which the court might form.

118. A slight variation of this argument may be to contend that his Honour’s order cannot stand if it is not clear that the impugned evidence was in fact produced as a result of a legitimate exercise of the coercive powers in the Security Industry Act. On this approach, it would arguably be necessary to have regard to the material in question. However, in my view, this is really an additional submission in aid of ground 1, that his Honour failed to give reasons. That ground has already been considered.

Ground 3(b)

119. Notwithstanding the conclusions to which I have come so far, it does seem to me that the vice to which his Honour’s decision was directed was capable in the particular circumstances of these cases of being remedied by means that fell short of the grant of a permanent stay.

120. Section 90 of the Evidence Act is as follows:

“90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a)    the evidence is adduced by the prosecution, and

(b)    having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.”

121. It is not clear to me why that provision could not have been utilised to obviate the unfairness that his Honour clearly considered existed.

122. Section 138 of that Act provides as follows:

“138 Exclusion of improperly or illegally obtained evidence

(1)    Evidence that was obtained:

(a)    improperly or in contravention of an Australian law, or

(b)    in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2)    Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a)    did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or

(b)    made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3)    Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a)    the probative value of the evidence, and

(b)    the importance of the evidence in the proceeding, and

(c)    the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)    the gravity of the impropriety or contravention, and

(e)    whether the impropriety or contravention was deliberate or reckless, and

(f)    whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g)    whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)    the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.”

123. I am also unaware of any reason why this provision could not have been utilised to meet the companies’ concerns.

124. The Director tended to formulate this ground upon the basis that his Honour failed to give proper consideration to the question of whether some lesser remedy than a permanent stay would have cured the unfairness that he identified. It seems to me that the real question on this ground of appeal is whether his Honour was in error when the perceived unfairness could have been mitigated by some lesser remedy, not whether he gave proper consideration to the choice.

125. In R v Seller; R v McCarthy, the Chief Justice considered this issue at [204]. That is extracted earlier at [86]. The power should only be utilised as a last resort. It should only be resorted to when there is, or appears to be, no readily available suitable alternative course of action. That does not apply in the present case in my view. Nor is there any credible suggestion that any other course would bring the administration of justice into disrepute. Indeed, having regard to the community interest in the proper disposition of criminal matters, it is fairly arguable that a permanent stay could in these cases itself have that regrettable effect.

126. I consider that a lesser remedy was available and should have been used. It is not without importance that the proceedings would have proceeded before his Honour who, by the very terms of his judgment, has keenly identified the iniquity concerned. It would have been unlikely in my view that he or any Magistrate in the same position would have permitted the prosecutor to tender or rely upon evidence that was tainted by the improper procedures that he identified.

Ground 4

127. Having regard to the view I have formed about the appropriateness of the permanent stay granted by his Honour, it is unnecessary in the circumstances to consider this final ground. It is sufficient to observe that my opinion, that a permanent stay was inappropriate, is itself to some extent a recognition of the need to balance the requirements of fairness to the companies with the legitimate public interest in the disposition of the charges that they face. I am satisfied that this balance can be maintained, along with public confidence in the administration of justice, if the proceedings are remitted to the Local Court to be dealt with according to law.

Orders

128. It seems to me that the proceedings should be remitted to his Honour for consideration and further hearing having regard to the conclusion I have reached concerning the extent of the relief granted by him. I will at this stage refrain from making any specific orders until the parties have had an opportunity to consider both these reasons and the preferred form of any orders that may to both of them appear appropriate.

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Decision last updated: 28 March 2017