Edmondson v The Attorney General of New South Wales
[2014] NSWLC 18
•11 November 2014
Local Court
New South Wales
Medium Neutral Citation: Edmondson v The Attorney General of New South Wales [2014] NSWLC 18 Hearing dates: 3 November 2014 Decision date: 11 November 2014 Before: Buscombe LCM Decision: Notices of motion seeking a permanent stay of proceedings dismissed.
Catchwords: Compulsory questioning - permanent stay Cases Cited: A v Boulton and Another (2004) 204 ALR 598 and (2004) 207 ALR 342
DPP v Shirvanian (1998) NSWLR 129
Jago v District Court of NSW and Others (1989) 168 CLR 23
Lee v The Queen (2014) 88 ALJR 656
R v Glennon (1992) 173 CLR 592
X7 v Australian Crime Commission and Another (2013) 248 CLR 92Category: Interlocutory applications Parties: Scott Edmondson (Applicant)
Daniel Barling (Applicant)
Damian Ralph (Applicant)
Eric Lim (Applicant)
The Attorney General of New South Wales (Respondent)Representation: Mr B. Walker SC and Mr Goodman instructed by Walter, Maden, Jenkins solicitors (Applicants)
Attorney General of NSW: Ms N Adams SC, Crown Advocate and Mr D Kell instructed by the Crown Solicitor (Respondent)
File Number(s): 2013/379612; 2013/379614; 2013/379616; 2013/379611
Judgment
Introduction
Scott Edmondson, Daniel Barling, Damian Ralph and Eric Lim are NSW Police officers. On 18 March 2012 an incident occurred on Pitt Street Sydney during which Mr Roberto Curti tragically died. On 16 December 2013 Mr Edmondson and Mr Barling were charged with assault occasioning actual bodily harm and common assault in relation to Mr Curti. On the same day Mr Ralph and Mr Lim were charged with common assault in relation to Mr Curti. Each accused has entered a plea of not guilty and the charges are to be heard summarily in the criminal jurisdiction of this Court, with the hearing fixed to commence on 17 November 2014. I will hereinafter refer to the accused as the applicants, unless it is necessary to draw a distinction in the evidence concerning each of them.
The applicants by notices of motion seek that I permanently stay the proceedings as an abuse of process. The Attorney General pursuant to a request from the Director of Public Prosecutions under s.29 of the Director of Public Prosecutions Act 1986, appeared as the respondent.
There is no doubt that this Court possesses the power to permanently stay summary criminal proceedings for an abuse of process as part of the implied powers it possesses; DPP v Shirvanian (1998) NSWLR 129. The applicants submit that a proper application of the principles discussed by the High Court in X7 v Australian Crime Commission and Another (2013) 92 CLR 92 and Lee v The Queen (2014) 88 ALJR 656 should result in a permanent stay of the proceedings. I will return later in this judgment to the appropriate legal principles to be applied to this application.
A number of persons who are mentioned in my discussion of the evidence and factual matrix in which the application is to be determined are referred to only by surname. I do so simply for expediency and no disrespect is intended.
The evidence and factual matrix
The parties read a number of affidavits and there was no dispute in terms of the evidence that was placed before me, and no deponent was required for cross-examination. I set out below what appears to me to be the essential facts upon which the application is grounded.
Events prior to the holding of a coronial inquest
I noted in the introduction that the incident in which Mr Curti died occurred on 18 March 2012. What has been termed directed interviews, were conducted with the applicants, Mr Barling and Mr Lim, on 19 March 2012.
In so far as Mr Barling is concerned, on 19 March 2012 he was given a written direction which provided, inter alia, the following:
As you are aware a critical incident investigation arising from the death of Roberto Laudisto Curti in Pitt Street, Sydney about 0600hrs on Sunday 18 March 2012 is currently underway. This investigation is being led by Detective Inspector David Laidlaw from the Homicide Squad, State Crime Command and reviewed by Detective Inspector Thomas Barnes from the Professional Standards Command. As part of that investigation Detective Sergeant Glen Browne and Detective Senior Constable Brendan Ritchie are going to conduct a directed non-criminal (departmental) interview with you. Pursuant to clause 8(1) of the Police Regulation 2008 (NSW) which states; "...Police officers are to comply strictly with the Act and this Regulation and promptly comply with all lawful orders from those in authority over them...." I direct you to answer all questions asked by those officers truthfully and to comply with any lawful directions that they may give in respect to this matter.
The evidence is that Mr Barling engaged in the interview and after being told by Detective Sergeant Browne that he was conducting "a directed non-criminal departmental interview", and reminded of the terms of the direction, Mr Barling said the following:
You have informed me that you are investigating a critical incident and it is not alleged that I have committed a criminal offence, therefore you do not intend to caution me, in fact you have not cautioned me. I wish it recorded that if you did caution me I would exercise my right to silence and not answer any of your questions. I wish it recorded that I am not voluntarily participating in this interview, I am only participating because you directed me to do so under regulation 8 of the New South Wales Regulations 2008. Therefore any answers I give, including any answers in this record of interview or any written response I give to a directive memorandum served on me, will only be given because I am under total duress and threat by you that if I did not answer your questions I may be dealt with pursuant to the Police Act 1900 by being either dismissed from the New South Wales Police Force or dealt with in some other way which will be against my personal interests. I further object to any answer or statement I give under your direction being tendered or used in any criminal, civil, disciplinary or other proceeding that is commenced against me. Further I claim derivative use of immunity of any such answer or written statement that I give in response to your direction. I make the same objection to the interview being admitted into evidence at any coronial inquest or inquiry held in relation to this matter.
Mr Barling was at Q47 of the directed interview asked to give his "complete and full knowledge" of the incident concerning Mr Curti and proceeded to do so, and answered further questions regarding the incident.
On 19 March 2012 Mr Lim was given a written direction in similar terms to that of Mr Barling. He too was the subject of a directed interview that day and at Q25, made the same statement that Mr Barling made in his interview, which I have set out above. He was told by the interviewing officer at Q45: ".....I now require you to disclose your full and complete knowledge relating to the death" of Mr Curti. Mr Lim gave his account in answer to that question and proceeded to answer further questions regarding the incident.
On 20 March 2012 Mr Edmondson received a direction in similar terms to that of Mr Barling and was subjected to a directed interview. He too at Q22 made a statement similar to that of Mr Barling which indicated that he was giving the interview under protest and only because he was compelled to do so. At Q47 he was asked to give his "full and complete knowledge" of the incident involving Mr Curti and proceeded to do so, and answered further questions about it.
On 27 March 2012 Mr Ralph received a direction in similar terms to that received by the other applicants. Mr Ralph was interviewed on the same day and at Q23 made a statement similar to the other applicants expressing the fact that he was participating in the interview under protest. He was asked at Q50 to give his "full and complete knowledge" of the incident concerning Mr Curti, and proceeded to answer that question. He answered further questions concerning the incident during the interview.
The evidence is silent as to what then occurred during the course of any further police investigation until the holding of a coronial inquest.
The Coronial Inquest
The then State Coroner held an inquest into the death of Mr Curti on 8,9,10,11,12,15,16,17,18 and 19 October 2012.
On 9 October 2012 Mr Lim was called to give evidence at the inquest. He indicated through his counsel that he objected to giving evidence without the protection of a certificate under s.61 of the Coroners Act. Her Honour indicated that she would grant a certificate and it appears from Her Honour's exchange with counsel for Mr Lim that it was on the basis of the possibility of Mr Lim being exposed to a "civil penalty".1 He was then asked questions by counsel assisting and counsel for other interested parties about the incident concerning Mr Curti. His evidence continued on 10 October 2012. Her Honour signed two certificates under the section on 29 August 2012, one for each day on which Mr Lim gave evidence.
On 11 October 2012 Mr Edmondson was called to give evidence at the inquest. After certain introductory questions, Mr Edmondson indicated to the Coroner that he objected to giving evidence unless he was granted a certificate under s.61 of the Coroners Act. Her Honour indicated that she would grant him a certificate under the section "because of the possibility of civil proceedings".2 Mr Edmondson proceeded to give evidence at the inquest with the protection of that certificate. His directed interview was tendered before the Coroner, and he was asked questions by counsel assisting Her Honour and counsel for other interested parties about the incident concerning Mr Curti. A certificate under s.61 of the Coroners Act in relation to Mr Edmondson was signed by Her Honour on 11 October 2012.
On 12 October 2012 Mr Ralph was called to give evidence at the inquest. Mr Ralph indicated after introductory questions that he objected to giving evidence without the protection of a certificate under s.61 of the Coroners Act. Her Honour indicated that she would grant Mr Ralph a certificate, "On the basis that there could be civil penalties, civil proceedings."3 Mr Ralph was then asked questions by counsel assisting and counsel on behalf of other interested parties about the incident involving Mr Curti. His evidence continued on 15 October 2012. Her Honour signed two certificates under s.61 of the Coroners Act on 29 August 2014, one for each day of Mr Ralph's evidence.
On 16 October 2012 Mr Barling was called to give evidence at the inquest. Mr Barling through his counsel indicated that he objected to giving evidence without the protection of a certificate under s.61 of the Coroners Act. It appears that Her Honour granted a certificate on the basis that there was the possibility that Mr Barling may be exposed to civil proceedings.4 Mr Barling was then asked questions about the incident concerning Mr Curti by counsel assisting and counsel for other interested parties.
The State Coroner delivered her findings in the inquest on 14 November 2012. One of Her Honour's recommendations was that the actions of the police during the pursuit and restraint of Mr Curti be referred to the Police Integrity Commission.
The Role of the Police Integrity Commission (PIC)
The initial officer in charge of the investigation that was conducted by the PIC was Markus Lutz (Lutz) and the investigation was given the operational name Anfi. Lutz described the nature of the operation as one of gathering "material in connection with potential criminal charges against police involved in the apprehension of Mr Curti". Lutz deposed that a large part of his investigation involved the gathering of documentary material from various sources that had previously been prepared in relation to the incident. This included obtaining the police brief that had been prepared for the coronial inquest, the Coroner's file and the transcript and exhibits from the inquest.
Lutz deposed that in reviewing the material he was assisted by a lawyer at the PIC called Mr Ramrakha, (Ramrakha), and an analyst, Ms Adams. Mr Lutz deposed that after obtaining documents from the inquest and the police brief of evidence, he did not consider it was necessary for the PIC to conduct any further investigation. He deposed that; "the matter was largely a voluminous 'paper exercise', involving the gathering and assessment of existing documentary material and evidence".
Lutz deposed that after assessing the documentary material he offered potentially affected officers the opportunity to participate in a record of interview, prior to referring a brief to advise to the Office of the Director of Public Prosecutions (ODPP).
On 27 May 2013 a brief was sent to the ODPP which comprised 20 volumes of documents. The brief included redacted versions of the evidence given by the applicants at the inquest, and a redacted version of the directed interview given by the applicant Mr Lim. According to Lutz, those parts of the inquest transcript and the redacted interview that were forwarded to the ODPP were only those parts relevant to possible perjury allegations, or which might be admissible evidence against a person other than the person who gave the evidence or interview.
Lutz deposed that with the brief that was sent to the ODPP there was both a covering letter and a document being observations on the brief. He further deposed that neither the letter nor the observations provided information about any further inquest transcript or directed interviews beyond the redacted versions. The index5 to that brief of evidence confirms the account Lutz gave as to the content of the brief forwarded to the ODPP on 27 May 2013.
The index indicates that the brief had a number of components to it. It included the transcript of evidence from the inquest. Consistent with Lutz's evidence it indicated that in relation to the applicants a redacted version of the transcript was included. The index indicated that directed interviews with various police officers were included. In relation to the applicants Mr Edmondson, Mr Ralph and Mr Barling, the index indicated that their directed interviews had been removed. In relation to Mr Lim, the index indicated that a redacted version had been included. The index also indicated that the "Coronial Brief" was included. That brief included a number of witness statements, some of which appear to have come into existence prior to the directed interviews with the applicants, and some after. The index also referred to another component of the brief which was described as; "Police Brief Excluding directed interviews of police officers Lim, Edmondson, Barling, Ralph & Cooper". The list of items included in that brief referred to some material that came into existence after the applicants' directed interviews, and some which was in existence prior to them.
The PIC around 11 December 2013 received advice from the ODPP as to the sufficiency of evidence for the laying of charges against the applicants for the offences with which they currently stand charged. At Lutz's direction, on 16 December 2013 another officer at the PIC issued the court attendance notices for the offences with which the applicants are currently charged. According to Lutz, he relied upon the advice of the ODPP in making the decision that the applicants be charged.
On 11 March 2014 a brief of evidence was served on the legal representatives for the applicants. The index for that brief6 indicates that transcripts of the inquest evidence was served, but that the transcript for the applicants Mr Lim, Mr Edmondson, Mr Ralph and Mr Barling had been removed. In relation to directed interviews the index indicates that the interviews for the applicants had been removed and that only a police notebook entry was supplied.
From about 16 April 2014 there was a change in the officer in charge of the investigation at the PIC, and Aaron Bantoft, (Bantoft), replaced Lutz in that role. Bantoft deposed that prior to becoming the officer in charge he had no involvement in the investigation. He deposed that he made a deliberate decision not to read the evidence the applicants gave at the inquest or their directed interviews, and as far as he is aware, no-one has told him about the content of such material.
Bantoft deposed that around 6 May 2014, after a mention of the proceedings in this Court, he spoke with the then Trial Advocate at the ODPP who had the carriage of the matter, Gareth Christofi, (Christofi). He recalled that Christofi had spoken with him and Ramrakha about the fact that a senior counsel for one of the applicants had raised with him that there were potential "Lee" issues in the proceedings and that anyone who had read what was referred to as the compelled material should not be involved in the proceedings. It is apparent that the reference to "Lee" issues was a reference to the High Court's decision in Lee v The Queen which was handed down on 21 May 2014. It may be that Bantoft's recollection of the date of the conversation is in error, but nothing turns on that.
Bantoft deposed that Ramrakha was removed from the investigation around 23 May 2014. Up until his removal he was the primary contact at the PIC for the ODPP, and from that date that role was performed by Bantoft.
Bantoft deposed that after a mention of the proceedings in this Court he arranged for a "new brief of evidence to be created from scratch" due, it would appear, to a realisation that considerable material in the previously served brief did not comply with the requirements of the Criminal Procedure Act 1986. That further brief was served on the applicants' legal representatives on 10 June 2014. He deposed that he did not read the observations document which accompanied the first brief provided to the ODPP by PIC.
According to Bantoft's affidavit, there was a difference between the brief served on the applicants and that provided to the DPP. The brief that was provided to the applicants' representatives included a disc of the coronial evidence given by the applicants, and that disc was not supplied to the ODPP. The index of the brief supplied to the applicants' representatives on 10 June 2014 also indicated that there was a folder containing the directed interviews of the applicants which was not supplied to the ODPP.
Bantoft in his affidavit referred to material which he described as "hybrid evidence", defined by him as being evidence of an expert who had read the directed interviews and referred to them in either a report or statement. In that category of evidence he identified a report by Dr Jonathan Phillips, psychiatrist, dated 9 August 2012 which had been prepared for the inquest. The doctor apparently formed an opinion about the mental state of Mr Curti as at the time of the incident, and in doing so was given access to the directed interviews conducted with the applicants. Bantoft deposed that he had read the doctor's report. He also identified an expert statement by Sergeant Craig Lamb, weapons and training expert with NSW Police dated 19 September 2012 which was prepared for the inquest. The Sergeant in his statement apparently referred to the answers given in the directed interviews by the applicants.
Bantoft deposed that he used the "hybrid evidence" in the following ways: Dr Phillips has signed a statement on 18 June 2014 adopting his earlier report; He has requested a further statement from another weapons and training expert with NSW police to produce material relating to training, policy and standard operating procedures. The request excluded questions or areas that required consideration of specific actions by the applicants. The statement by Sergeant Lamb was included in the briefs of evidence provided by the PIC to the ODPP on 11 March and 10 June 2014.
Bantoft deposed that at some time prior to 23 July 2014 he became aware that Christofi was being removed from the matter and on that date he was advised that Ms Cate Dodds, (Dodds), at the ODPP was to be the trial advocate conducting the proceedings. On 28 August 2014 he was further advised that Dodds would be instructed by Mr Andrew Charleston (Charleston), solicitor, with the ODPP. Bantoft deposed that he has not at any time discussed the applicant's inquest evidence or directed interviews with Dodds or Charleston.
Bantoft deposed that on 3 September 2014 he raised by email with Dodds and Charleston the "hybrid evidence" being Dr Phillips report and asked how they proposed to deal with that evidence. He was told by email that any "hybrid evidence" should be sent to Christofi and that he would ensure that any compelled evidence would be redacted before being forwarded to Dodds and Charleston, and he has followed that process.
The Role of the Office of the Director of Public Prosecutions(ODPP)
The respondent relied upon an affidavit of Ms Lisa Frances Viney, (Viney) the Managing Lawyer of an area of the ODPP known as Group 6 which is responsible for prosecuting, inter alia, police officers charged with criminal offences.
Viney deposed , consistent with the evidence I have set out above, that the ODPP received on 27 May 2013 a request from the PIC for legal advice in relation to potential criminal charges against 5 police officers involved in the pursuit and apprehension of Mr Curti, including offences of assault occasioning actual bodily harm, common assault and perjury. The request was accompanied by 20 volumes of investigatory material. That material included redacted transcripts of the applicants' and another officer's evidence from the inquest. The material also included a redacted version of the applicant Lim's directed interview and that of another officer, not being one of the applicants. Viney deposed that the latter material was said to have been included so that the offence of perjury might be considered, and for consideration as to whether it could be used as evidence against another officer.
Viney further deposed that the material from the PIC included a summary of the events leading up to Mr Curti's death, which was cross-referenced to documents and referred to parts of the applicants' evidence at the inquest and in the directed interviews. Viney deposed that the DPP at no time received from the PIC the un-redacted transcripts of the inquest evidence of the applicants, and that the only part of a directed interview of the applicants that was received was the redacted interview with the applicant Lim.
Viney deposed that the material originally received from the PIC was allocated to a solicitor within Group 6 who, in conjunction with a Crown Prosecutor, prepared a recommendation for the Director of Public Prosecutions, (the Director). The material that was provided to the Director included the whole of the advising brief that had been provided to the ODPP by PIC.
Viney deposed that on 11 December 2013 the Director provided a written advice to the PIC regarding the sufficiency of evidence to charge certain officers with particular offences. Viney deposed that she allocated Mr Christian Hearn, (Hearn) a solicitor with Group 6 to draft charges in accordance with the Director's advice. It is this advice that Lutz relied upon in giving directions that the court attendance notices charging the applicants be prepared.
Viney deposed that initially the proceedings against the applicants were allocated to Ms Harris a trial advocate, but when she became unavailable the matter was briefed to Christofi, then a trial advocate, now a Crown Prosecutor. He worked without an instructing solicitor.
Viney deposed that after the High Court's decision in Lee, the Director advised her to send a letter to the applicants' legal representatives outlining what steps had been taken to ensure compliance with that decision. Christofi was directed by the Director to arrange for a prosecutor's brief of evidence to be compiled that was intended to exclude all reference to the applicants' evidence at the inquest and directed interviews. The conduct of the prosecution was also reallocated to Dodds who had no previous involvement in the review of the material or the prosecution. Dodds was allocated Charleston as an instructing solicitor who also had no prior involvement in the matter.
Viney deposed to other steps taken to ensure that Dodds and Charleston were not made aware of the contents of the applicants' directed interviews or inquest evidence. I do not consider it necessary to set out in detail what those steps were given that there was no challenge to that evidence.
The respondent read an affidavit by Christofi who confirmed his role in the matter was as I have set out in my analysis of other affidavits relied upon by the respondent. In particular he deposed that after the High Court's decision in Lee, he was told that the matter was to be re-allocated to Dodds and that he should screen the prosecution evidence to remove any indirect references to the applicants' directed interviews or inquest evidence. He deposed that he proceeded to do so. He further deposed that he has had no discussions with Dodds or her instructing solicitor as to the content of any such material, and that he has been available should there be a need to further screen material.
The respondent also relied upon affidavits from Dodds and Charleston who depose to having had no prior involvement in the matter until they were directed to do so as a consequence of the High Court's decision in Lee. Again I do not consider it necessary to set out in detail the content of their affidavits as there was no challenge to their evidence, and their role in the prosecution I have essentially set out through the analysis of other material before me. A reading of their affidavits shows that they acted in a way designed to ensure that they did not become aware of the contents of the applicants' directed interviews or inquest evidence.
The applicable legal principles
I noted earlier that this Court does have the power to permanently stay summary criminal proceedings for an abuse of process, one such situation being where a trial will be unfair, and there is nothing a trial judge, (or magistrate), can do to satisfactorily remedy the unfairness. The High Court has described the granting of a permanent stay as a drastic remedy, tantamount to a continuing immunity from prosecution or a refusal to exercise jurisdiction. It should only be granted in extreme or exceptional circumstances. The applicant for a permanent stay has the onus of establishing the factual circumstances which ground the application and warrant the use of the exceptional power. The Court must be satisfied that there are no other available means to the Court to ensure that a fair trial can be afforded an accused, prior to granting a permanent stay; Jago v District Court of NSW and Others (1989) 168 CLR 23; R v Glennon (1992) 173 CLR 592.
I will return to the application of those general principles applicable to applications to permanently stay criminal proceedings, once I have considered in detail the two primary High Court authorities relied upon by the applicants, and the applicants' submissions.
The first of those authorities is X7 v Australian Crime Commission (2013) 248 CLR 92. X7 was arrested and charged with three offences under the Commonwealth's Criminal Code, two offences alleged involvement in conspiracies concerning border controlled drugs, and the other dealing with money alleged to be the proceeds of crime. The charges were to be dealt with on indictment. After being charged, and while in custody, X7 was served with a summons under the Australian Crime Commission (ACC) Act 2002 (Cth) requiring him to be examined before an examiner under that legislation. He was asked and answered questions about the subject matter of the offences with which he had been charged. Following an adjournment of the examination process he declined to answer any more questions about that subject matter. He was told that he would be charged with an offence under the ACC Act of failing to answer a question he was required to answer by the examiner.
X7 commenced proceedings in the original jurisdiction of the High Court seeking certain declarations and injunctions. Two questions were then reserved for consideration of the Full Court. Paraphrased those questions were: 1. Did the relevant provisions of the ACC Act empower the examiner to conduct an examination of a person charged with a Commonwealth indictable offence where the examination concerns the subject matter of the offence charged? 2. If the answer to Question 1 was yes, were the relevant provisions contrary to Chapter III of the Constitution?
By majority, Hayne, Keifel and Bell JJ, French CJ and Crennan J dissenting, the High Court held that the relevant provisions did not authorise an examiner to ask a person charged with Commonwealth offences questions about the subject matter of those offences. The fundamental difference between the majority and minority was in relation the construction of the relevant provisions.
Dealing firstly with the joint judgment of Hayne and Bell JJ. Their Honours referred to the rule of construction that is referred to as a "principle of legality". Their Honours were of the opinion that a law which permitted the Executive arm of government to ask and require an accused person to answer questions about the subject matter of a pending charge, would alter the process of criminal justice to a marked degree.7 Such a change in the process of criminal justice could only be made by way of express words or necessary intendment.8 Their Honours observed that the relevant provisions did not expressly provide for the compulsory examination of a person charged with a Commonwealth indictable offence.9 Their Honours were of the opinion that the general provisions concerning compulsory examination in the ACC Act did not necessarily imply such a power.10
In arriving at their ultimate conclusion their Honours made comments about the accusatorial nature of the criminal justice process. The applicants call in aid a number of those comments in submitting that the grounds for the granting of a permanent stay are made out here.
As is apparent from my examination of the evidence before me, one issue that is addressed in the respondent's evidence is the steps that have been taken to ensure that those members of the ODPP who have the conduct of the prosecution of the applicants have not had access to the content of the directed interviews or the inquest evidence. Relevant to an assessment of the significance of that evidence in the context of the application are the comments made by Hayne and Bell JJ at [70] and [71]. Their Honours make clear that in a circumstance where an accused already charged was required to answer questions about the subject matter of the charge, there would be an alteration of the process of criminal justice to a marked degree, whether or not the answers given were admissible at trial or kept secret from those investigating or prosecuting a pending charge. Their honours considered that a wholly accusatorial process would be radically altered, and would be a departure in a marked degree from the "general system of law".11
Their Honours explained why that was so at [124], in the following terms:
[124] Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.
In a number of paragraphs Hayne and Bell JJ emphasise that the whole process of criminal justice, commencing with the investigation of crime and culminating in the trial of an indictable Commonwealth offence, is accusatorial.12
In arriving at their conclusions Hayne and Bell JJ referred to the decision in Hammond v The Commonwealth (1982) 152 CLR 188. The High Court in Hammond restrained an examination of Mr Hammond under the Commonwealth's Royal Commission Act as he was being examined about the subject matter of an indictable Commonwealth offence with which he had been charged. Their Honours drew attention to Gibbs CJ's comments that a continuation of the examination would amount to a contempt, even if the examination took place in private.
In the passages in Hayne and Bell JJ's judgment to which the applicant referred their Honours were focussing their comments upon circumstances where an accused person already charged with a criminal offence is compelled to answer questions about the subject matter of the charged offence. The applicant submitted that the principles contained in their Honours' judgment could be applied to circumstances where an accused person was compelled to answer questions prior to being charged.
Keiffel J agreed with Hayne and Bell JJ's answers to the stated case and "substantially" with their Honours' reasons.13 Her Honour stated that the prosecution, in the discharge of its onus of proof, cannot compel an accused to assist it. The principle Her Honour said was fundamental to the system of criminal justice, and that the accusatorial nature of the system of criminal justice involves pre-trial inquiries and investigations, as well as trials.14
The minority, French CJ and Crennan J, reached a different conclusion as to the statutory construction of the relevant provisions, and were of the opinion that the examination powers of the ACC could be used after a charge had been laid. Their Honours distinguished Hammond on the basis that in Hammond it was established that the prosecution was to have access to the evidence and information compulsorily obtained which could establish guilt of the offences, and which was only subject to a direct use immunity.15 Their Honours placed reliance upon the fact that an examiner under the ACC Act was empowered and required to make directions safeguarding the fair trial of a person compulsorily examined, as well as having the benefit of a prohibition against the direct use of the compelled evidence or information.
The minority acknowledged that administrative or Executive inquiries into offences are capable of prejudicing the fair trial of an accused, in particular where compulsory examination by a member of the executive after a charge has been laid afforded the prosecution an unfair forensic advantage. Their Honours noted that such an unfair advantage may take the form of the prosecution making use of derivative evidence to obtain a conviction. In that regard at [54] their Honours said:
Given the onus on the prosecution to prove an offence, and the non-compellability of an accused, in the absence of a factor such as the independent sourcing of evidence it is not possible to reconcile a fair trial with reliance on evidence against a person at trial which derives from compulsorily obtained material establishing that person's guilt, or disclosing defences. (My emphasis)
The minority recognised that there may be circumstances in which the fairness of a trial can be reconciled with the admissibility of derivative evidence. Their Honours also noted that not all derivative evidence is of the same quality and may emerge from multiple sources. Their Honours pointed out that a trial judge could exclude derivative evidence as a means of ensuring the fairness of proceedings.16
The applicant also relied upon Lee. In Lee one of the appellants was compulsorily examined by the NSW Crime Commission, (NSWCC), on two occasions prior to being charged . He was subsequently charged with firearms and a money laundering offence. The other appellant was compulsorily examined by the NSWCC after both he and the first appellant had been charged with firearms offences and supply prohibited drug charges were imminent. The transcripts of the examinations and documents produced by one of the appellants were published by the NSWCC to the DPP and the police. The documents produced were made available to potential witnesses, the police and the DPP. It was apparent from pre-trial proceedings that the Crown Prosecutor had as part of his brief the transcripts of the evidence given by the appellants at the examinations. The appellants were convicted and their appeals to the NSW Court of Criminal Appeal were unsuccessful.
The High Court was of the opinion that the publication of the transcripts to the DPP was not authorised by the relevant statutory provisions, and was done for an improper purpose, being to ascertain the appellants' defences. The High Court was of the opinion that it was not necessary for the appellants to show "practical unfairness" in order to establish that there had been a miscarriage of justice and ordered a retrial. (The Court of Criminal Appeal had been of the opinion that there had been no "practical unfairness" at the appellant's trial, as there was nothing in the appellant's examination evidence that was considered to be relevant to the trial, as it was conducted.) The High Court explained its reasoning at [43]:
These appeals do not fall to be decided by reference to whether there can be shown to be some "practical unfairness" in the conduct of the appellants' defence affecting the result of the trial. This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice. The appellants' trial was altered in a fundamental respect by the prosecution having the appellants' evidence before the Commission in its possession.
And later in [46] the Court said:
It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution.
The High Court was critical of the approach taken by the DPP at trial:
The prosecution has a specific role in our system of criminal justice, one which entails particular responsibilities. It is not to the point that the defence lawyers did not object or seek a stay of the proceedings. No forensic advantage could have been sought by the failure to do so. It is the prosecution which has the responsibility of ensuring its case is presented properly and with fairness to the accused[30]. It is therefore more to the point that the prosecution's possession of the appellants' evidence before the Commission put at risk the prospect of a fair trial, which s 13(9) sought to protect. The prosecution should have enquired as to the circumstances in which the evidence came into its possession and alerted the trial judge to the situation, so that steps could be taken to ensure that the trial was not affected. The trial judge could have ordered a temporary stay, while another prosecutor and other DPP personnel, not privy to the evidence, were engaged.
No doubt it is those comments which have engendered the approach taken to the current prosecution and the change in those entrusted with the prosecution within the ODPP.
The applicants' submissions
Prior to the hearing of the notices of motion the then senior counsel for the applicants, who was not the senior counsel who appeared on the hearing, filed lengthy written submissions in support of the application. A number of those submissions were not pressed by the applicants at the hearing of the application.
At the hearing the primary submissions of the applicants were as follows. The applicants submitted that the decision of Adamson J in Baff v New South Wales Commissioner of Police [2013] NSWSC 1205 meant that the applicants were entitled to refuse to answer questions during the directed interviews on the basis of the privilege against self-incrimination, without fear of any action being taken against them for doing so. Her Honour in considering the relevant statutory and regulatory framework applicable to NSW Police officers who are interviewed during investigations concerning their conduct, reached the conclusion that there was nothing in the relevant provisions that abrogated the privilege against self-incrimination. Her Honour was of the opinion that the Commissioner or his delegate could direct an officer to attend an interview and was entitled to ask questions. Her Honour was also of the opinion that once the privilege was claimed, the Commissioner or his delegate had no right to require a police officer to answer questions to which the privilege related. The respondent accepted the correctness of Her Honour's decision; see [14] of the respondent's written submissions.
The applicants submitted that they had made it clear in their directed interviews that they claimed the privilege against self-incrimination, and yet were forced to answer, and did so. That is apparent, in my opinion, from the statements they each made prior to answering the questions asked of them about their knowledge of the incident involving Mr Curti. The applicants submitted that due to that mistake about the law, both by those asking the questions, and those answering them, about what was to occur when the privilege against self-incrimination was asserted, the police, and ultimately the PIC, were in possession of answers from the applicants concerning the subject matter about which they were ultimately charged.
It was also submitted that the possession by the ODPP at any time of the redacted inquest evidence, and directed interviews was improper.
The applicants submitted that the possession of the compelled evidence from the applicants, both in the form of the directed interviews and the inquest evidence, by those who put together the brief of evidence that was ultimately submitted to the DPP, was such a fundamental defect in the process of criminal justice, that a permanent stay of proceedings should be granted.
The applicants submitted that the investigators, both police and the PIC staff, could not have failed to have regard to the evidence given by the applicants during the directed interviews and the inquest when conducting the investigation and preparing the brief of evidence. It was submitted that the Court would be satisfied it was not possible to "disentangle" the brief of evidence in the sense of determining what evidence had been obtained through the derivative use of the compelled evidence and what had not been so obtained. In that regard the applicants relied upon the number of statements in the index to the brief which contained dates that post dated the directed interviews and/or the applicants' inquest evidence.
The applicants submitted that in Hammond, X7 and Lee the High Court had made clear that it was a fundamental breach of the accusatorial nature of the criminal justice process for prosecutors to be in possession of compelled evidence about the subject matters of charges. Senior Counsel for the applicants argued for an extension of those principles to the current case, arguing that there was no reason why such principles ought not apply to questioning prior to charge and where those who carried out the investigation were in possession of such compelled evidence.
Senior Counsel for the applicants at the hearing acknowledged that the argument advanced by the applicants involved an extension of the decision in Hammond and X7 to circumstances where a person was not the subject of a criminal charge. Senior counsel for the applicants relied upon the statements by the majority in X7, which were to the effect that the course of criminal justice included the process of investigation in arguing that the principles could be extended to pre-charging compulsory questioning.
The applicants did not seek to show, and did not establish on the evidence, that the possession of the compelled evidence or interviews had led the prosecution to obtain evidence which formed part of the prosecution brief. That is, there was no specific evidence that there was derivative use evidence which forms part of the prosecution brief of evidence. Senior counsel for the applicants submitted that Lee had established that it was not necessary to show practical unfairness where there had been a fundamental breach of the accusatorial nature of the criminal justice process, which included the investigation which led to the charging of an accused. Senior counsel for the applicants submitted that the fact that the High Court in Lee directed a re-trial and did not grant a permanent stay, was no barrier to a permanent stay being granted here. The High Court in Lee was concerned only with whether a miscarriage of justice had occurred, and was not specifically concerned with whether or not a permanent stay ought be granted. If the other requirements for the granting of a permanent stay were met, it was argued that the fundamental defect in the criminal justice process here, justified the granting of a permanent stay.
The respondent's submissions
Submissions were made on behalf of the respondent both in writing and orally. The Crown Advocate submitted that there was nothing improper about the ODPP receiving the applicants' redacted inquest evidence and the redacted directed interview of Mr Lim. The ODPP was entitled to receive that material to consider the possibility of perjury charges as the certificate granted under s.61 of the Coroners Act did not provide protection against prosecution for false evidence; see s.61(7).
It was also submitted that there was nothing improper about the ODPP receiving that evidence to assess the sufficiency of the available evidence to prosecute each of the applicants. Reliance was placed upon the decision in Rich v Attorney General of New South Wales and Others [2013] NSWCA 419.
It was further submitted on behalf of the respondent that the fact that the decision maker who made the decision to charge had access to compelled evidence did not of itself make a subsequent trial an abuse of process. The evidence establishes that after the judgment in Lee was handed down, steps were taken to ensure that new prosecuting lawyers were engaged who had no knowledge of the compelled evidence. The compelled evidence here, unlike in Lee, had not been provided to the prosecution after charges had been laid.
It was also submitted by the Crown Advocate that the fact that new prosecutors had been engaged meant that there was no risk the trial would be unfair in the sense of an abuse of process. Even if some unfairness was found, the applicants had not established that some other step such as exclusion of certain evidence would not relieve the unfairness. The principles governing the granting of a permanent stay were not satisfied.
The Crown Advocate indicated at the hearing that the respondent was taken by surprise by the oral submissions advanced by the applicant, that the Court should find that it was impossible to "disentangle" the brief in the sense of determining what evidence was independently sourced from that derived through the use of the compelled material. It was submitted that the focus of the applicant's written submissions had been on the role of the prosecution and not the investigation and as such the respondent's evidence had not addressed the "disentangle" submission. The Crown Advocate submitted that if I was of that opinion then the respondent sought time to put on further evidence to address that submission.
Resolution of the issues
My review of the evidence shows that redacted transcript of the inquest evidence of the applicants was referred to the ODPP for three reasons; so that it could be considered in relation to possible perjury charges, so that regard could be had to it in the making of the decision to prosecute, and to consider whether the evidence given by one or more applicant could be relied upon in the prosecution of another, or others. I see nothing improper in that occurring and that such referral did not amount to a fundamental breach of the accusatorial nature of the criminal justice process.
Section 61(7) of the Coroners Act makes clear that a certificate under that section does not protect the recipient from criminal proceedings in respect of the falsity of the evidence given by the recipient. As perjury is an indictable offence and the ODPP has the primary responsibility in this State for the prosecution of such offences, there is nothing improper or unlawful in the ODPP being given and receiving the transcript of a recipient so that a decision about whether such a prosecution should be commenced can be made.
I also do not consider that there is anything improper or that there has been a fundamental breach of the accusatorial nature of the system of criminal justice that the ODPP had possession of the redacted transcripts for the purpose of considering the evidence that each applicant may be able to give against the others. That in my opinion is an entirely proper way for the ODPP to assess what evidence an applicant could give against others.
I also note the fact that the ODPP had possession of the transcript of the evidence of each of the applicants could not rationally lead to a decision to prosecute if the admissible evidence did not justify the decision to do so in accordance with the ODPP's Guidelines. See Rich v Attorney-General of New South Wales and Others [2013] NSWCA 419.
I referred earlier to the applicants' submission that the principles in Hammond and X7 should be extended to circumstances where a person is compelled to answer questions about a subject matter, at a time prior to charge, and is charged at a later time with a criminal offence concerning that subject matter. An argument that the principles in Hammond should be extended to a situation where a person was compelled to answer questions prior to charge, but when a suspect, was considered by the Federal Court prior to X7 and Lee.
In A v Boulton and Another (20014) 204 ALR 598 a person being examined before an examiner at the Australian Crime Commission sought judicial review of the decision of an examiner to require him to answer questions at an examination conducted under the ACC Act 2002 (Cth). The applicant claimed that it was likely that in the future he would be charged with offences relating to the subject matter of the examination, but had not been at the time of the examination.
One of the arguments advanced on behalf of the applicant at first instance, primarily on the basis of Hammond, was that once a body with coercive investigative powers has formed a view that a person has committed an offence, and decided the person should be charged, it cannot question that person under compulsion, regarding the circumstances of the offence.18
At first instance Weinberg J rejected the applicant's argument which involved an extension of the decision in Hammond. His Honour said:
[128] I am unable to accept Mr Faris's contention that there is no material difference between a person who has been charged with an offence, and a person who may be "about to be charged". There can never be any certainty that a person "about to be charged" will in fact be charged.
[129] Likewise, I am unable to accept Mr Faris's submission that the use of coercive powers to question a person "about to be charged" necessarily amounts to an interference with the administration of justice.
His Honour had regard to the extended concept of "course of justice" and "administration of justice" as referred to in R v Rogerson (1992) 174 CLR 268, a case concerning offences of attempting or conspiring to pervert the course of justice. His Honour considered those concepts and said as follows:
[143] Notwithstanding the reasoning in Rogerson, it seems to me that no basis has been shown for treating Hammond as precluding the use of coercive questioning in circumstances where the curial process has not yet been invoked. Whatever scope may be accorded to inchoate offences involving conspiracy or attempting to pervert the course of justice, the cardinal principle underlying Hammond is that of contempt, and not these anterior offences.
[144] As regards contempt, it seems clear that this offence is not ordinarily committed unless and until the curial process has been commenced. In the absence of any such process, the use of coercive powers, pursuant to statute, would not generally be described as having a tendency to interfere with the due administration of justice.
[145] Mr Faris also sought to invoke principles of fairness and justice in support of his contention that the Hammond principle should be applied to protect his client from questioning. The answer to that contention seems clear. If his client is ultimately charged, and the prosecution seeks to lead evidence derived from the answers given in response to coercive questioning, the trial judge will have available ample power to exclude such evidence if he or she is satisfied that it was unfairly obtained. The fact that evidence is admissible does not necessarily mean that it will, ultimately, be admitted.
Weinberg J's decision was the subject of an unsuccessful appeal to the Full Court of the Federal Court. In respect of the argument concerning the extension of the Hammond principles to questioning prior to charging the Full Court19 said at [43]:
The appellant has not, moreover, shown that there was error in his Honour's conclusion that the principle in Hammond was not to be extended as the appellant contended.
Weinberg J's decision on the approach to Hammond was accepted as correct by Bathurst CJ, with whom McClelland CJ at Common Law and Rothman J agreed in R v Seller [2013] NSWCCA 42 see [77] and [82]. I note that Seller was decided prior to the decisions in X7 and Lee.
It was submitted on behalf of the applicants that the decisions in A were of limited assistance as in relation to the directed interviews, the privilege against self-incrimination had not been abrogated, yet under the legislation that was applicable in A it had been. It was also submitted that Weinberg J's opinion in so far as the principles in Hammond were concerned, was not consistent with the statements of principle made by the High Court in X7 and Lee about the course of criminal justice which I have referred to earlier.
I do not consider the fact that it has now been held that the privilege against self-incrimination was available at the time of the directed interviews, in any way is a proper basis for distinguishing the decisions in A. The fact remains that there was pre-charge compelled (mistakenly) questioning.
Weinberg J, as the extract I set out above shows, was clearly aware that the High Court considered that the course of justice included the investigation process, hence I do not think that the comments in X7 and Lee about the scope of the criminal justice process significantly impact upon the correctness of His Honour's decision.
After the hearing my attention was drawn to Button J's decision in....................... In that case ........................ considered that the principles in Hammond, as applied and commented upon in X7 and Lee, could be applied where compulsory questioning occurred prior to charge. His Honour specifically considered that those principles applied where there was, at the time of the compulsory questioning, a significant possibility the person would be charged with an offence arising from the subject matter of the questioning. I understand His Honour's decision is subject to an appeal to the Court of Criminal Appeal. (Edited as the decision referred to is subject to a non-publication order)
While the scope of the application of the principles in Hammond remains uncertain given the dicta in X7 and Lee, there would seem to be one circumstance which to my mind suggests that the principles may not be limited solely to persons who have been charged with a criminal offence. That circumstance would be where the evidence showed that a decision to charge had been made, but the formality of the charging process was deliberately delayed so that compulsory questioning could occur. It is difficult to see how if the evidence showed that to be the case, why the principles in Hammond would not be applicable. I hasten to add that such a circumstance is a long way removed from the current case.
Absent the decision of ........................., I would be bound, in my opinion, to hold that the principles in Hammond only apply after charge, in light of the acceptance of that position by the Federal Court and the Court of Criminal Appeal, absent a specific decision by the High Court ruling to the contrary. In light of the approach ............. has taken to the dicta relied upon by the applicants from X7 and Lee, and given the breadth of that dicta, in my opinion compulsory questioning of a person who is at a later time charged with a criminal offence arising out of the subject matter of the questioning, may amount to a fundamental breach of the course of criminal justice. However, the extension of those principles, in my opinion, is limited to circumstances where it is established that at the time of the compulsory questioning there is at least a significant possibility, in the sense of a real likelihood, that the person questioned would be charged with an offence arising from the subject matter of the questioning. I also consider that the decisions in Lee and ................ comments and approach in ..................., make clear that even if there has been such a fundamental breach, there may be steps that can be taken which will ensure that the person concerned will still receive a fair trial. (Edited as the decision referred to is the subject of a non-publication order).
The evidence does not support a finding that an investigation of a criminal offence was being undertaken at the time that the directed interviews were conducted. There is no suggestion in the evidence that at the time of the compelled questioning at the directed interviews, the applicants were suspected of having committed a criminal offence. In those circumstances the compelled questioning in my opinion cannot amount to a fundamental breach of the accusatorial nature of the criminal justice process.
Similarly, the extracts and references to the inquest evidence which I referred to earlier, establish that the Coroner granted certificates under s.61 of the Coroners Act because Her Honour was of the opinion that the applicants might be subject to a civil penalty. There is no evidence suggesting that at the time the applicants were required to answer questions at the inquest , they were suspected of having committed a criminal offence, or were the subject of a criminal investigation. In such circumstances I do not consider that the fact that the applicants were compelled to give evidence at the inquest represents a fundamental breach of the accusatorial nature of the criminal justice process.
Even if I was of the opinion that the fact that the applicants were compelled to give directed interviews and evidence at the inquest, constituted a fundamental breach of the accusatorial nature of the criminal justice process, I do not consider the applicants have made out a case for a permanent stay.
I referred earlier to the general principles governing the granting of a permanent stay of proceedings, noting that it is an exceptional remedy. I do not accept the submission that I should infer from the state of the evidence before me that it would be impossible to "disentangle" the brief of evidence to determine what evidence was not obtained through the use of the compelled evidence given by the applicants. As I noted earlier, it is clear that some evidence existed prior to the directed interviews. If the applicants claim that evidence has been obtained as a consequence of statements made by the applicants during the interviews, a voir dire can be held at the hearing of the charges as to whether that evidence should be admitted. The trial magistrate, if such a voir dire is conducted, has powers to not admit evidence that has been unlawfully or improperly obtained; see for example the Evidence Act s.138.
Similarly, if at the applicant's summary trial the applicants object to certain evidence on the basis that evidence that is sought to be adduced by the prosecution was obtained as a direct or indirect consequence of the evidence the applicants gave at the inquest, a voir dire can be held to establish whether or not such evidence falls within the protection provided to them under s.61(7) of the Coroners Act. The magistrate conducting the summary trial would no doubt determine on the voir dire whether or not the evidence could be used against the applicants.
There is nothing in the evidence before me to suggest that such an approach to the evidence is not available to the applicants at their summary trial should they chose to adopt it.
The fact that a number of statements in the prosecution brief have dates which post-date the compelled directed interviews and the applicants' inquest evidence, does not establish that such evidence was derived or "infected" by the compelled questioning of the applicants.
In these circumstances I am not satisfied that the fact that the applicants were compelled to give directed interviews or evidence at the inquest, has resulted in them being unable to obtain a fair trial.
I also note the steps taken by the ODPP in relation to the briefing of new prosecution lawyers to conduct the trial, and the screening of the original brief of evidence to ensure that the new lawyers who are to conduct the trial have no knowledge of the compelled evidence. The evidence of those actions by the ODPP satisfies me that the indication in Lee of the need to do so, where there is compelled evidence provided to the ODPP, has been properly regarded by the ODPP.
For these reasons I am of the opinion that the applications for a permanent stay of proceedings should be refused.
Buscombe LCM
Local Court
Downing Centre
Sydney
11 November 2014
Decision last updated: 19 December 2014
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