Dunn v The Queen [No 7] - [2013] WASC 305

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DUNN -v- THE QUEEN [No 7] [2013] WASC 305

CORAM: EM HEENAN J

HEARD: 25 JULY 2013

DELIVERED : 15 AUGUST 2013

FILE NO/S: INS 107 of 2012

BETWEEN: GREGORY JOHN DUNN
Applicant
AND
THE QUEEN
Respondent
PETER MERVYN BARTLETT
Second Accused
RONALD GEORGE SAYERS
Third Accused
DEBORAH JEANNE GRACE
Fourth Accused

Catchwords:

Criminal law - Procedure - Conspiracy - Application for a permanent stay of prosecution - Application to dismiss charge and to direct acquittal

Legislation:

Crimes Act 1914 (Cth)
Australian Crime Commission Act 2002(Cth)
Criminal Procedure Act 2004 (WA)

Result:

Applications for stay of prosecution and for dismissal of charge dismissed

Category: B

Representation:

Counsel:

Applicant:     In person
Respondent:     Mr P Roberts SC & Ms S Tatas
Second Accused            :     No appearance
Third Accused              :     No appearance
Fourth Accused            :     No appearance

Solicitors:

Applicant:     In person
Respondent:     Director of Public Prosecutions (Cth)
Second Accused            :     Clifford Chance
Third Accused              :     Clifford Chance
Fourth Accused            :     Jackson McDonald

Case(s) referred to in judgment(s):

Australian Crime Commission v Bartlett [No 3] 2013 WASC 108
Bartlett v The Queen [2012] WASC 503
Bunning v Cross (1978) 141 CLR 54
EM v The Queen [2007] HCA 46; (2007) 232 CLR 67
Lee, Do Young v The Queen [2013] NSWCCA 68
Merchant v The Queen (1971) 121 CLR 414
Nicholas v The Queen (1998) 193 CLR 173
R v Bartlett [No 4] [2013] WASC 107
R v Dowding [2000] VSC 439
R v Hoar (1981) 148 CLR 32
R v Ireland (1970) 126 CLR 321
R v LK [2010] HCA 17; (2010) 241 CLR 177
Ridgeway v The Queen (1995) 183 CLR 1932
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396

EM HEENAN J: By application dated 8 July 2013 the first named accused, Gregory John Dunn, has applied for various orders or rulings under s 98 of the Criminal Procedure Act 2004 (WA) (CPA) to the effect that certain evidence to be led against him at the trial of this indictment be excluded; that as a result, he be found not guilty of the offence charged; and, alternatively, an order that the charge against him be dismissed 'in accordance with s 135.4(13) of the Criminal Code Act 1995 (Cth)'.

Absence of co‑accused

Although named as the first accused in this prosecution, the applicant, Gregory John Dunn, was joined in these proceedings by an amendment to the indictment on 22 March 2013 (R v Bartlett [No 4] [2013] WASC 107). This is the first application which he has made for orders or directions pursuant to s 98 of the CPA or at all. As will emerge, the nature and grounds of his present application are not pursued by any of the other three co‑accused. Nevertheless, he is now one of four co‑accused persons, all of whom are required to be present at the trial or at any proceedings involving any application by a party under pt 4 of the CPA – see s 88. However, the court may order proceedings, which relate to an accused, to proceed in the accused's absence if satisfied that the accused's interests would not be prejudiced by his or her absence and that to do so will not be contrary to the interests of justice – CPA s 88(4). Each of the other three co‑accused has sought, by his or her solicitors or counsel, to be excused from attending at this hearing of Mr Dunn's application. These requests have been made on the basis that their interests will not be prejudiced by their absence. I accept that this is so and I am satisfied that it will not be contrary to the interests of justice for each of the other three co‑accused to be excused from attending this hearing.
At the commencement of the proceedings I enquired of Mr Dunn, and also of counsel for the Commonwealth Director of Public Prosecutions (CDPP) whether either submitted that any of the other three co‑accused should be present at this hearing or whether counsel or Mr Dunn opposed the application that they be excused. Both Mr Dunn and counsel for the CDPP responded by submitting that there was no reason from their respective viewpoints why any of the other three co‑accused should be present. Accordingly, I formally confirmed that the hearing of the present application could proceed in their absence.

The applications

By the terms of his application Mr Dunn seeks the following relief:
1.An Order/Ruling pursuant to subsection 98(2)(a) of the Criminal Procedure Act 2004 that any admissible evidence referred to in the Australian Crime Commission's Haycastle brief of evidence given/delivered to the Commonwealth Director of Public Prosecutions on 17 August 2011 to be led be excluded;
2.If the Order/Ruling in 1. above is granted, a further Order/Ruling pursuant to subsection 98(2)(c) of the Criminal Procedure Act 2004 that I be found not guilty of the charge of the offence against subsection 135.4(3) of the Criminal Code Act 1995 (Cth);
3.If the Order/Ruling in 1. or 2. above is denied, an Order/Ruling pursuant to subsection 98(2)(a) of the Criminal Procedure Act 2004 that the offence against subsection 135.4(3) of the Criminal Code Act 1995 (Cth) for which I am charged be dismissed in accordance with subsection 135.4(13) of the Criminal Code Act 1995 (Cth).
Before the hearing Mr Dunn served and filed an outline of written submissions (15 pages) in support of his applications to which were annexed 13 further documents (enumerated in the written submissions) which were copies of, or extracts from, various affidavits and other documents which had been filed in earlier applications by other parties in the course of this case; or parts of or extracts from the Brief documents which had been served by the prosecution and upon Mr Dunn or disclosed to him in the course of the prosecution; computerised printouts of sections of the Australian Crimes Commission Act (ACC Act) and other related documents. He also filed and sought to have read his own affidavit sworn on 8 July 2013 in support of the application. There was no objection on behalf of the prosecution to that affidavit being read and Mr Dunn was not required to be cross‑examined upon it. I have, therefore, accepted that affidavit as part of the evidence upon which the present application is to be determined.
Furthermore, as the application proceeded, Mr Dunn sought to rely upon the content of a letter dated 25 February 2010 from Mr Robert Philp of the Australian Crime Commission (ACC) to the CDPP in support of his submission that there had been unauthorised or unlawful disclosure of materials by an officer of the ACC to the CDPP which, according to his submission, would provide a foundation for the court to exercise a discretion to exclude any or all of the materials so disclosed from evidence at this trial. That letter from the ACC dated 25 February 2010 was not among the materials which had been put forward in evidence by Mr Dunn and was not immediately available. Counsel for the DPP, however, undertook to obtain a copy of the letter and to provide it to the court after the hearing, a course to which Mr Dunn gratefully assented. That has since been done and I have received a copy of that letter which now is also part of the evidence relied on in this application.
The CDPP has also filed written submissions dated 24 July 2013, accompanied by a case note of the ACC dated 26 February 2010 (ID2554187) and forming part of the brief in opposition to the application. That case note was also received as part of the evidence on this application.
Once appreciated and analysed, Mr Dunn's submissions in support of paragraphs 1 and 2 of his application can be shortly stated. His contentions are that by virtue of s 51(1) and s 51(2) of the ACC Act it is an offence for any member of the staff of the ACC to divulge or communicate to any person any information or material deriving from an ACC investigation otherwise than in connection with the performance of his or her duties under the ACC Act. In particular, so the submission goes, this means that a member of the staff of the ACC, unless holding the powers of the CEO or having been delegated those powers under s 59A of that Act, cannot authorise or deliver to the CDPP or to any of the latter's staff information obtained or prepared by the ACC or its staff, especially, as in this case, material resulting from the investigation known as Operation 'Haycastle'. The details of Operation Haycastle are set out in earlier reasons for judgment which I have given in these proceedings: see Bartlett v The Queen [2012] WASC 503.
Mr Dunn then points to the provisions of s 12(1) of the ACC Act which provide that should the ACC obtain evidence of an offence against a law of the Commonwealth, such as s 135.4(5) of the Criminal Code in the present case, from an operation or investigation such as Operation Haycastle, the CEO of the ACC must assemble that evidence which would be admissible in a prosecution for an offence and give it to an authority authorised to prosecute that offence, such as the CDPP. According to Mr Dunn's submission, the distribution or disclosure of materials by the ACC to any external person or agency is proscribed and is illegal because of s 51(1) and s 51(2) of the ACC Act unless such disclosure or delivery is made pursuant to s 12(1). In that latter case, so the submission further contends, there are further limitations or conditions upon the ability to deliver or disclose such information. First, the disclosure or limitation can only be done by the CEO of the ACC, or by a member of the staff of the ACC who is an SES officer or acting SES officer to whom the CEO has expressly delegated in writing his powers or functions, including the CEO's power under s 12(1) to forward materials to a prosecuting authority – as to the power of delegation, see s 59A of the ACC Act. The second limitation upon the power of disclosure or delivery of materials under s 12(1), asserted by Mr Dunn, is that the information, documents or materials must constitute 'evidence which is admissible in a prosecution for an offence' so that if information is not admissible, for example, as being irrelevant to the proof of any such offence, its disclosure or release is not authorised under s 12(1). Mr Dunn's submission is that if such 'inadmissible' material is disclosed without authorisation under s 12(1), an offence under s 51(1) or s 51(2) will thereby be committed.
By pointing to a document (annexure GJD3 to the written submissions – an ACC case note dated 17 August 2011 and prepared by Mr Robert Philp of the ACC) Mr Dunn submits that this reveals that the 12‑volume revised main brief of evidence for Haycastle was delivered to the CDPP that day, along with a disc containing the electronic brief and witness statements. So much appears from the case note itself but Mr Dunn further contends that the document reveals that the revised main brief of evidence for Haycastle was delivered to the CDPP that day by, or at the direction of, Mr Robert Philp himself. By further evidence he submits that Mr Philp was not then, or ever, the CEO of the ACC or an SES officer or acting SES officer to whom the CEO had delegated the requisite powers under s 12(1) to give such evidence to an authorised prosecuting authority such as the CDPP and that, consequently, by delivering these materials to the CDPP, Mr Philp acted in breach of s 51(1) or s 51(2) and thereby committed an offence.
There is a second strand to Mr Dunn's submissions contending that there was unlawful, therefore illegal, distribution of Haycastle material by the ACC to the CDPP. In this regard, Mr Dunn submits that in order to comply with s 12(1) of the ACC Act the CEO (or his delegate appointed under s 59A) must be satisfied that the material assembled as a result of the investigation and which is proposed to be sent to the CDPP or another prosecuting authority is, indeed, admissible evidence which may establish an offence against a law of the Commonwealth or some other law and, that to do so, the CEO or his delegate must personally examine the material in order to be satisfied that that is the case. He submits that there is no evidence before the court or in the brief of materials as disclosed to him which would indicate that such a personal examination was undertaken or the necessary degree of satisfaction was reached by the CEO or by his delegate, and that that means that the delivery of materials to the CDPP constituted an unauthorised disclosure by the ACC.
Next, Mr Dunn submits that, as the examination of the documents which have been delivered to him by the prosecution reveals, there are many documents which, even on the most liberal of interpretations, could not be regarded as constituting admissible evidence against him in relation to this present charge. Without going to all the documents of this alleged character, Mr Dunn refers to two examples which, so he contends, are so striking that they demonstrate his point irrefutably. The first such example comprise two witness statements provided by his elderly parents to ACC officers on 19 January 2007, which are confined to a description of land which his parents acquired in 1973, and upon which he built a house in the 1980s and for which he was subsequently granted an option to purchase in 2004. His second example is that the materials disclosed include a copy of his will and testament dated 14 November 2001, superseded by a later will dated 12 July 2004. He contends that statements from his parents relating to land over which he obtained an option to purchase in 2004 and the contents of wills made in 2001 and 2004 can have no conceivable bearing upon, or relevance to, the charge of conspiracy which he presently faces. He submits that this means that those documents, and other so far unidentified documents which are irrelevant to the present prosecution, can only have been supplied by the ACC to the CDPP without authority because they are not within the ambit of s 12(1) of the Act. He refers to these as containing 'extraneous information'.
These contentions lead Mr Dunn to his principal submission that there is a well established common law power, recognised by s 112 of the Evidence Act 1906 (WA) for a court to exclude evidence that has been obtained illegally or which would, if admitted, operate unfairly against the accused. He submits that all the evidence in the prosecution brief sought to be relied upon by the Crown in the present case was obtained by the CDPP by the unauthorised delivery or distribution of those materials from the ACC by or at the direction of Mr Philp and that, consequently, this court has a discretion to exclude that evidence and should do so. As to the existence of the discretion to exclude evidence illegally obtained and how it may be exercised, he refers to R v Ireland (1970) 126 CLR 321; Merchant v The Queen (1971) 121 CLR 414, 417 – 418; Ridgeway v The Queen (1995) 183 CLR 1932; and Nicholas v The Queen (1998) 193 CLR 173, 201, 209 – 210, 215 – 218, 257 – 258, 264 – 265 and 275. To those authorities I would add Bunning v Cross (1978) 141 CLR 54; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; and EM v The Queen [2007] HCA 46; (2007) 232 CLR 67 which also contain detailed expositions and analyses of the principles which Mr Dunn seeks to invoke in support of his application.

Extraneous evidence

It is convenient at this point first to deal with the last of Mr Dunn's submissions, namely that the ACC distributed to the CDPP materials which comprised or included what he terms 'extraneous information'; that is, information which could not on the most liberal construction be regarded as admissible evidence in support of proof of the charge which he presently faces. His references to the statements from his parents about the land upon which he constructed a house and obtained an option to purchase and copies of wills which he made years before can be treated as representative examples of this alleged category of materials for this purpose.
The first point made by counsel for the CDPP, which I am satisfied should be accepted, is that s 12 of the ACC Act imposes a positive duty on the CEO ‑ s 12(1) includes the words:
… the CEO must assemble the evidence and give it to:
(a)the attorney-general of the Commonwealth or the State, as the case requires or
(b)a relevant law enforcement agency or
…
This duty arises where the ACC, in carrying out an ACC operation/investigation, 'obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence …'. It was pointed out by senior counsel for the CDPP that this process necessarily precedes, in many cases by a significant length of time, the laying of any charge by a prosecutor against some person. Nor will it be the ACC who decides whether or not to lay a charge or, if so, what specific charge to allege. Those are decisions for the prosecuting authority. It may even be the case that, notwithstanding the reception of the evidence obtained from the ACC investigation, the prosecuting authority decides not to lay any charge in relation to the matters revealed by that aspect of the investigation, either because other different charges are being laid or for any other reason which in the proper exercise of the prosecutor's discretion may disincline the prosecutor to lay a charge in respect of suspected offences revealed by the ACC investigation.
This means that attempting to determine the relevance, and hence admissibility, of evidence provided by the ACC to the DPP under this process by reference only to some charge later laid by the CDPP is an entirely mistaken approach. The correct approach would be to consider whether on the whole of the information obtained by the ACC in the course of its investigations the evidence being supplied to the prosecution authority may be admissible in a prosecution for any offence against a law of the Commonwealth or a State or Territory or, for that matter, that it may be evidence that would be admissible in confiscation proceedings as recognised by s 12(1A) of the ACC Act. Without knowing the full ambit of the ACC's discoveries in the Haycastle investigation in the present case, and whether other suspected offences were believed to have been disclosed by the materials supplied to the CDPP or, for that matter, whether the materials so supplied were relevant as evidence in support of confiscation proceedings, it is simply not possible to reason back from the nature of the charge that Mr Dunn is presently facing to determine the propriety of the disclosure of this alleged extraneous evidence by the ACC to the CDPP. This means that there is no reason to conclude, and it certainly has not been shown by Mr Dunn, that the disclosure of the so‑called extraneous information was not authorised by s 12 of the ACC Act.
Counsel for the DPP submitted that there is no basis for accepting Mr Dunn's submissions that s 12(1) of the ACC Act confine the material that can or must be disseminated to a prosecution authority only to 'admissible evidence'. Counsel cited Lee, Do Young v The Queen [2013] NSWCCA 68, which is a case dealing with the Crime Commission Act 1985 (NSW) which, by s 13(9), provides powers and functions similar to those conferred on the ACC by s 12(1) of the Commonwealth Act. In that case, at [127] Basten JA said:
While a principal function of the Commission was to assemble admissible evidence, that function should not be read narrowly. First, it should be understood as the assembly of material intended to be used in a criminal prosecution, not as requiring the Commission to make some preliminary ruling on admissibility. The statements from the signatories of the documents provide an example of why that approach should be adopted. There may have been circumstances in which the statements would become admissible, but their real function was to identify evidence which could be given by the deponents if called as witnesses at a trial. The obligation to furnish certain material to the Director [of Public Prosecutions], when stated as a function of the Commission, should not be read as a limitation on the power to take such a step.

I consider, with respect, that a similar approach should be taken to the construction of s 12(1) of the ACC Act but again a determination of the admissibility or use of any particular piece of evidence being delivered by the ACC to the CDPP cannot be undertaken solely from the viewpoint of the charge now preferred against the accused long after the material was disclosed.
There is a further substantial point which must also lead to the rejection of Mr Dunn's submissions on this aspect of his application. It is that the CDPP does not propose to lead any of this so‑called 'extraneous information' in evidence in the prosecution against Mr Dunn. It is not included in the brief upon which the prosecution relies, although it has been included as part of the comprehensive disclosure of materials in the prosecution's possession and so has come to the notice of Mr Dunn. As it is not proposed to be led in evidence at this trial, there is no occasion for me to rule that it is inadmissible or should be excluded from evidence in the exercise of a Bunning v Cross or R v Ireland discretion. Here I am concerned only to deal with the admissibility of evidence at this forthcoming trial. This is not the occasion to embark on any wider determination of whether or not materials which are not to be used at this trial by the prosecution have been disclosed by the ACC to the CDPP otherwise than in accordance with s 12 of the ACC Act. By making that observation I am not in any way to be taken as suggesting or implying that that has occurred. Rather, I simply observe that that possibility is not of any relevance to the conduct of this forthcoming trial, nor is it capable of investigation or determination in these proceedings.
As in any trial, Mr Dunn, and each of the other accused, will have the right to object to the admissibility of any particular item or sequence of evidence proposed to be led at the trial if and when the prosecution seeks to adduce that evidence. If at the trial the prosecution seeks to adduce some oral or documentary evidence to which objection is made on the grounds of irrelevance, then that can be dealt with when the occasion arises. However, there is simply no point, either now or later, in Mr Dunn seeking a ruling about materials which the prosecution does not seek to introduce into evidence.
As for the contention that the CEO of the ACC or his delegate so appointed under s 59A must personally examine the evidence which it is proposed should be sent to the CDPP or other law enforcement authority and be satisfied that it constitutes admissible evidence in respect of a particular offence before the material may be disclosed or delivered to the prosecuting authority, I do not accept Mr Dunn's submission. In the first place, for reasons already canvassed, the determination of whether or not the materials constitute admissible evidence giving rise to the duty of delivery imposed on the ACC by s 12 cannot be determined merely by reference to the charge for which Mr Dunn has been indicted. Secondly, it is not possible on the materials before this court to determine what offence or offences may have been in the mind of the ACC at the time when the decision was made to give these materials to the CDPP.
Of even greater significance, I do not consider that s 12 requires the CEO or his authorised delegate personally to examine all the documents which have been gathered as a result of investigation and which are proposed to be sent to the prosecuting authority. Having regard to the national role of the ACC and to the number and complexity of investigations which it may be conducting at any one time (as to which see the affidavits of Mr G P Pritchard of 27 October 2012 and 13 December 2012 read in an earlier application in this case: Australian Crime Commission v Bartlett [No 3] 2013 WASC 108 [18] – [37]) it would be practically impossible for one individual to perform such a time consuming task.
Obviously, the CEO is entitled to rely on officers of his department to carry out tasks associated with investigations and to report on the results of those activities to him or through intermediate officers to him or his delegates about the results and progress. If an officer of the ACC responsible for directing such an investigation, such as Mr Philp, does so he will, presumably, have other officers below him assisting in the task and in the investigations and reporting to him and he will, in turn, report to superior officers and either directly or ultimately to the CEO or to his delegate. I have no doubt that the CEO or his delegate will be justified in acting on the reports and recommendations of his staff in reaching any determination as to whether or not the results of an investigation provide evidence of an offence against a law of the Commonwealth or a State or a Territory, or may support confiscation proceedings, without personally inspecting or evaluating the materials.
Furthermore, in the present case, the onus of proving that the CEO or his delegate did not perform or fulfil the obligations cast upon him by s 12 before delivering materials to the CDPP rests upon the person asserting that – in this case, Mr Dunn. No such evidence has been provided and in the present circumstances there is no onus upon the CDPP to supply it. Insofar as there may be any presumption about what has occurred from the facts which are established by the evidence, this will be a rebuttable presumption of fact that what was done by the ACC was done correctly – omnia praesumuntur rite esse acta: see Cross On Evidence, 9th Australian edition, pars [1720] – [1790].

Was the ACC evidence unlawfully supplied to the CDPP

The simple response made by the prosecution to the submission that the Haycastle brief was delivered by Mr Philp, an officer of the ACC without the requisite authority, to the CDPP on 17 November 2011 is that this is not so and that there is no evidence in any of the materials before the court to support that contention. The affidavit of Mr G P Pritchard sworn 13 December 2012 (annexure GJD13 to Mr Dunn's submissions) which was prepared and filed in relation to an earlier application concerning whether or not particular documents the subject of witness summonses issued by the other accused, were privileged from production because of legal professional privilege, public interest immunity or other grounds, sets out at par 23 that on 26 February 2010 the ACC delivered 41 volumes of a brief of evidence to the CDPP and that later the CDPP made recommendations to bring charges against the other three accused and then, on 17 August 2011, the ACC delivered 15 volumes of a committal brief to the CDPP, and that there then followed the institution of this prosecution against the other three accused. This affidavit, relied upon in the present application by Mr Dunn himself, shows that the Haycastle brief material was first delivered to the CDPP on 26 January 2010, long before the occasion when the 'committal brief' was delivered on 17 August 2011. The implication in Mr Pritchard's affidavit, although nowhere expressly stated, is that the delivery of the 41 volumes of a brief of evidence on 26 February 2010 and the subsequent delivery of 15 volumes of a committal brief by the ACC on 17 August 2011 was not any step taken by Mr Philp acting alone or on his own authority. So far as any implication can be drawn from Mr Pritchard's affidavit, it is that the delivery of the materials on both occasions was an act done by the ACC itself as a formal Commission decision.
That implication is reinforced by the ACC case note number 2554187 of 26 February 2012, being a situation report apparently prepared by Mr Robert Philp for the ACC production database which reads:
Following the completion of the dissemination paperwork and sign off by G M Kath Florian, the Haycastle main brief was delivered to the Commonwealth DPP this morning. The brief comprises a total of 41 volumes …
I consider that this should be regarded as a formal record of the ACC, for all its authorised personnel, including the CEO and any delegate, of what was done by Mr Philp acting in accordance with instructions and approvals given to him by a superior officer. There is nothing in any of the documents to warrant or support an inference that the decision and/or action to deliver the Haycastle brief to the CDPP was taken or implemented by Mr Philp acting alone or without the authority or knowledge of the CEO or his delegate. Again, insofar as there may be any presumptions of fact arising from the circumstances, this must be as to the regularity of the procedure followed in the absence of any evidence to the contrary.
Furthermore, the letter of 25 February 2010 from the ACC to the CDPP which was produced by the prosecution after this hearing does not in any way suggest the contrary. That is a letter by the ACC to the Deputy Director of the CDPP at Perth sent by the ACC case officer for Operation Haycastle, Mr Philp. It describes the nature of Operation Haycastle and identifies the four accused as being involved in the transaction under investigation. It describes the brief as focused upon four matters occurring within a period 1998 to 2004 and seeks advice as to whether, based upon the evidence presented, charges could be brought against the four accused in relation to any Commonwealth offences before drawing attention to the three particular types of fraud offences which had been the focus of the investigation. It then seeks further advice about the nature of the case against the four accused which might be brought and related matters. The entire implication of the letter is that Mr Philp was then acting as a case officer in the course of a large investigation which, as has been established by other evidence in these proceedings, has been authorised by the ACC and its board: see my reasons for decision in Australian Crime Commission v Bartlett [No 3] [16] – [22].
There is simply no basis to conclude that Mr Philp was acting without the knowledge or authority of the CEO or his delegate or that the decision to transmit materials from the ACC to the CDPP was taken by Mr Philp alone. Rather, the implications are to the contrary and, in the present circumstances, the onus of proof for the alleged lack of authority rests upon Mr Dunn. There is no evidence at all to support the assertion which he advances.
This being the case, there is no reason to conclude that the evidence obtained by the CDPP and which is intended to be used for the prosecution in this case was obtained illegally or without authority. That being the case, the evidence which is relevant will be admissible and there is no basis or occasion to embark on any exercise of discretion to determine whether or not it should nevertheless be excluded in the exercise of a Bunning v Cross or R v Irelanddiscretion.
In these circumstances, the relief sought in pars 1 and 2 of the application by Mr Dunn must be refused.

Criminal Code Act 1995 (Cth) s 135.4(14)

The third and remaining aspect of Mr Dunn's application is for an order or ruling pursuant to s 98(2)(a) of the CPA that the charge against him under s 135.4(3) of the Criminal Code Act 1995 (Cth) be dismissed in accordance with s 135.4(13) of that Act. Section 135.4 constitutes the crime of conspiracy to defraud a Commonwealth entity. Section 135.4(13) provides:
A court may dismiss a charge of an offence against this section if the court thinks that the interests of justice require the court to do so.
In his written submissions Mr Dunn draws attention to s 135.4(14) which provides that it is a condition precedent to the commencement of proceedings for an offence against s 135.4(3) or s 135.4(5) that the CDPP consent to the commencement of those proceedings. He repeats his earlier submission that on 17 August 2011 Mr Philp gave or delivered the ACC Haycastle brief of evidence to the CDPP and then submits that the CDPP is an 'independent prosecuting service' subject to the Director of Public Prosecutions Act 1983 (Cth) and which adopts and applies a public document called the 'Prosecution Policy of the Commonwealth' in carrying out its functions. For that proposition he again relies on the affidavit of Mr G P Pritchard sworn 13 December 2012, already mentioned in these reasons. He then goes on to set out the role of the CDPP in providing legal advice from time to time to the ACC relevant to any potential prosecution or prosecutions, and from this submits that it should be inferred that, having received the ACC's Haycastle brief of evidence on 17 August 2011, the CDPP examined this and decided a prosecution should be instituted but, in doing so, was not aware that the Haycastle brief of evidence (either in whole or in part) 'was prima facie unlawfully given/delivered to the CDPP and prima facie an offence was committed by the person who disseminated it'. This contention relies on the earlier submissions that Mr Philp alone decided to deliver the Haycastle brief to the CDPP and did so on 17 August 2011 and was not an authorised delegate of the CEO with power to perform that function.
Then Mr Dunn submits that 'it is implausible to presume that the CDPP would have given … his consent to the institution of the prosecution against the applicant, Mr Dunn, had the CDPP been aware of the absence of authority by Mr Philp to deliver the Haycastle brief'. From this, he next proceeds to submit that it would not be 'in the interests of justice' to allow the prosecution to proceed in these circumstances, and cites a series of decisions in which the expression 'justice' or 'the interests of justice' have been considered in other contexts. It is not necessary to examine any of those authorities.
For the reasons which I have already given, there is no basis for any conclusion that it was Mr Philp alone, acting without the authority of the CEO or his delegate under s 12(1) of the ACC Act, who delivered the Haycastle brief to the CDPP either on 17 August 2011 or, for that matter, earlier, on 26 February 2010, or that, in any way, the delivery of the brief or parts of the brief on either occasion was unlawful or unauthorised. There is no evidence whatever to support Mr Dunn's submission and, as far as the evidence goes, the implications are to the contrary.
Counsel for the CDPP makes the further submission that the provisions of s 135.4(13) of the Criminal Code (Cth) do not have any relevance in the present situation nor even if it were to be shown that evidence had been illegally obtained by the prosecution.
The submission for the CDPP is that s 135.4(13) is aimed at preventing abuse of the use of a conspiracy charge by a prosecuting authority. Support for that proposition can be found in R v LK [2010] HCA 17; (2010) 241 CLR 177 where the court examined extensively the origins and history of the crime of conspiracy both at common law and under the Criminal Code (Cth). In doing so, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92] set out in full the provisions of s 11.5 of the Code dealing with the elements of the offence of conspiracy and s 11.5(6) and (8) are to the same effect as s 135.4(12) and (13). When dealing with s 11 the High Court drew attention to the recommendations which led to that legislation as contained in the Model Criminal Code Officers Committee (MCCOC0 report ('Gibbs Committee Report') of December 1992 and observed that s 11.5 followed those recommendations and that the draft clauses corresponding to s 11.5(6) and (8) were intended to provide procedural restrictions in the light of concern that prosecutions for the crime of conspiracy under the pre‑existing law had been susceptible of abuse [103]. French CJ also referred in passing to the recognition that as the crime of conspiracy evolved as a common law offence in England, there were instances of its employment being an abuse of legal procedure: see R v LK [60] (French CJ) and footnotes 172 and 173 at (2010) 241 CLR 177, 206.
The reference by the other justices to the fact that prosecutions for the crime of conspiracy under the pre‑existing law had been susceptible of abuse cited R v Hoar (1981) 148 CLR 32 where Gibbs CJ, Mason, Aickin and Brennan JJ set out, at page 38, the manner in which the employment of a conspiracy prosecution or an additional count for conspiracy could become oppressive and create difficulties for the court when dealing with the trial or sentencing of alleged offenders. This led their Honours to observe:
Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed. As Lord Pearson observed in Virrier [1967] 2 AC 223 – 224, the addition of a charge of conspiracy in the same indictment 'will tend to prolong and complicate the trial'.
There is even less justification for charging conspiracy and the substantive offence separately and for maintaining the prosecution in respect of the substantive offence after securing a conviction for conspiracy.
Counsel for the CDPP also cited R v Dowding[2000] VSC 439 where Teague J at [20] considered whether or not to exercise a statutory discretion under s 86(7) of the Crimes Act 1914 (Cth), the forerunner of s 135.4(13) and said of that statutory discretion:
I am reluctant to try to categorise considerations which might affect the exercise of the discretion. But from the cases to which I have referred it sufficiently appears, that it may be appropriate to have regard to many considerations. They include: whether a count of conspiracy to commit an offence is joined with a count alleging the commission of the same offence; likewise where there is an overlap between the elements of the offence and the alleged overt acts of the conspiracy; whether the joinder can be seen to be an abuse of process; whether a conspiracy count reflects the criminality involved more appropriately than substantive accounts; whether double jeopardy is a realistic possibility; whether the complexity of the trial is likely to be increased, because of evidentiary difficulties or otherwise; whether adverse consequences as to sentencing might result; whether the potential for injustice to the accused might arise for any other reason; whether severance is a more appropriate option than dismissal.
Having done so, Teague J expressed himself not satisfied that he should dismiss the conspiracy accounts against any of the accused.
This is not a case in which the charge of conspiracy has been joined with any other offence and there has been no submission on behalf of Mr Dunn that the laying of a substantive offence of any kind would be more appropriate or would prevent possible abuse of process. The grounds upon which he seeks to have the charge against him dismissed in reliance on s 135.4(13) do not, in my view, reflect or support the use of that power or discretion and I am satisfied that neither for this or any other reason should I dismiss the charge against Mr Dunn.
In the result, therefore, all three forms of relief sought by this application must be refused and the application dismissed.