Jarrett v Seymour & Ors; Camm & Ors v Seymour & Ors; Elliott v Seymour

[1993] HCATrans 390

~ ~

· . .. ~':r

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml58 of 1993

B e t w e e n -

KENNETH CHARLES JARRETT

Applicant

and

SERGEANT DOUGLAS SEYMOUR

First Respondent

THOMAS SHERMAN

Second Respondent

NATIONAL CRIME AUTHORITY

Third Respondent

DIRECTOR OF PUBLIC PROSECUTIONS

OF VICTORIA

Fourth Respondent

Office of the Registry

Melbourne No 159 of 1993

B e t w e e n -

Elliott 20/12/93

PETER CAMM, PETER DAMIEN

SCANLON and KENNETH ROBERT

BIGGINS

Applicants

and

SERGEANT DOUGLAS SEYMOUR,

THOMAS SHERMAN, NATIONAL CRIME

AUTHORITY, DIRECTOR OF PUBLIC

PROSECUTIONS (VICTORIA)

Respondents

Office of the Registry

Melbourne No Ml60 of 1993

B e t w e e n -

JOHN DORMAN ELLIOTT

Applicant

and

SERGEANT DOUGLAS SEYMOUR,

THOMAS SHERMAN, NATIONAL CRIME

AUTHORITY, DIRECTOR OF PUBLIC
PROSECUTIONS OF VICTORIA,
AUSTRALIAN BROADCASTING

COMMISSION and STEVEN MARSHALL

CRABB

Respondents

Applications for a stay

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 20 DECEMBER 1993, AT 10.32 AM

Copyright in the High Court of Australia

MR J.L. SHER, QC: If Your Honour pleases, I appear with my

learned friend, MR J.G. JUDD, for the applicant,

Elliott and the applicant, Jarrett. (instructed by

W.G.P. Aarons & Co)

MR W.F. LALLY, QC: If Your Honour pleases, I appear for the

applicants, Camm, Scanlon and Biggins. (instructed

by Phillips Fox)

MR C.N.JESSUP, QC: If Your Honour please, I appear with my

learned friend, MR B.E. WALTERS, for the first,

second and third respondents in each matter.

(instructed by the Australian Government Solicitor)

MR P.J. JOPLING: If Your Honour pleases, I appear for the

fourth respondent in each matter. (Solicitor to

the Director of Public Prosecutions (Victoria))

HER HONOUR:  Gentlemen, until I read the papers on the

weekend, I had not realized that the second

respondent has been sued personally, or proceedings

have been brought against the second respondent

personally. I must disclose that I have known him

in a social context at some time in the past,

although there has been no social contact for the

last five years. I do not know if you wish to get

instructions about it, Mr Sher?

MR SHER:  I do not think so, Your Honour. Although the

proceedings are brought against Mr Sherman
personally, it is only in his role as Chairperson

of the NCA, and I do not see any difficulty from

our viewpoint, Your Honour.

HER HONOUR:	Yes, thank you.
MR LALLY:	I have nothing to say, Your Honour.
MR JESSUP:	No problem from our point of view, Your Honour.

MR JOPLING: Nothing to say.

HER HONOUR:  Yes, thank you. Well then, I will take it that

there is no objection and we will proceed with -

your application should go first, Mr Sher, should

it not?

MR SHER:  Yes, if Your Honour pleases. I wonder if I might

inquire from Your Honour firstly whether

Your Honour has received all the material and has

Your Honour had an opportunity to look at it? I

would not want to take up time going through the

material unless there -

HER HONOUR: Three affidavits, I think; three applications,

three summonses; two judgments and some exhibits.

MR SHER:  Yes.

HER HONOUR:	Yes.
MR SHER:	I will assume then Your Honour has read it all.
HER HONOUR:	I have read it but do not assume I have a close

knowledge of it.

Elliott 20/12/93

MR SHER: Very well, Your Honour. Now, could I just perhaps

tell Your Honour something that is not in the

material that is, I think, important for

Your Honour to know and it is this, that when the

Full Court announced its decision, the applicants

then asked for a stay so that they could make an

application for special leave and the point of the
application for the stay was to ensure that the

special leave application, if successful, was not

rendered purposeless.

The proceedings are brought, not entirely but

substantially, to prevent charges being laid and,

of course, if there is no injunction in the

interim, there is not the slightest doubt in

anyone's mind, certainly on this side of the bar
table - and I do not think it is in issue - that charges will be laid. So that if the applicants

have a case for special leave it would be rendered

purposeless if there were no stay.

What happened in the course of the stay application is that it was very short. I think it

was the presiding judge Mr Justice Lockhart who

made some reference to the decision of

Justice Brennan in the Burgundy Royale case but

there was no debate about the authorities. The
court adjourned for a short time to consider its

position in relation to the stay application, came

back and announced its reasons and referred in the

course of those reasons to two decisions of a

Justice of this Court, the decision of
Justice Brennan in the case of Jennings

Construction v Burgundy Royale Investments,

161 CLR 681, and the subsequent decision of the

Chief Justice in Smith Kline & French Laboratories

v Secretary, Department of Community Service and
Health, (1991) 65 ALJR 360. It is also in the

Australian Law Reports. Both are civil cases and in both of them indications had been given by the

Court, with which we do not quarrel, that the Court	has an inherent jurisdiction to grant, in effect, a	stay by way of an injunction, if necessary, but it
is an exceptional jurisdiction and not to be
lightly exercised.
I will - if I do not, I suspect my learned friends will - take Your Honour to those cases but
might I say that there was a subsequent decision of
His Honour Justice Brennan that was not referred to and the question that one would have been asking on
a consideration of those two cases that were
discussed were both civil cases. In the second of
them, the Smith Kline & French Laboratories case there had actually been a trial and an appeal, so
there had been a hearing on the merits, and the
Chief Justice's view was that the special leave

Elliott 20/12/93

application would not be rendered purposeless if

the special leave application succeeded and then

the appeal succeeded because equitable compensation

could have been awarded which would have cured any

problem of not granting a stay in the interim. So,

it was a civil case in which, effectively, damages

was going to be an appropriate remedy if the appeal
to this Court succeeded.

The first of the cases, the Jennings Construction case, was also a civil case and

Justice Brennan - does Your Honour have a copy of

that in Court? Probably not.

HER HONOUR:  No. I do not think anyone obliged with their

authorities but I am familiar with the case.

MR SHER:  Yes. Your Honour will recall that there were four

matters that His Honour had mentioned:

a substantial prospect that special leave to

appeal will be granted -

was the first and, obviously, the most important -

secondly, whether the applicant has failed to

take whatever steps were necessary to seek a

stay from the court in which the matter is

pending -

well, we did that, unsuccessfully, as happened in

Jennings Construction, notwithstanding which

His Honour did grant a stay -

thirdly, whether the grant of a stay will

cause loss to the respondent; and fourthly,

where the balance of convenience lies.

There was no suggestion of any loss and, in
relation to balance of convenience, the case for

the respondents was and has always been the general

concept of interfering with the criminal process.

No particular allegation of prejudice was made; no

witness was likely to disappear or become ill or

die or anything like that, so there was no
suggestion - the real question seemed to turn on

the prospect of success.

Now, the subsequent decision of which we do

have a copy for Your Honour of Narain, (1987)

71 ALR 248, was a case involving the liberty of the

subject and was also a decision of His Honour

Justice Brennan which showed, quite obviously, a much more liberal approach in relation to such a
matter as this where the liberty of the subject was

involved. This was an extradition case,

Your Honour.

Elliott 5 20/12/93

Your Honour will see from the short judgment,

there being no headnote, a description of the

relevant events about two-thirds of the way down

page 248, about line 40. What had happened was

that the applicant had been apprehended under a

warrant and the order had been made that he be

delivered into the custody of a New Zealand

policeman. He had applied to the Federal Court for

a review of the magistrate's order, which had been

dismissed. There had been an appeal and cross appeal to the Federal Court and the applicant,

effectively, failed thereto. So, as at 9 February

he was faced with the prospect of being extradited

immediately to New Zealand and he was seeking to

challenge that order.

He filed an application for special leave on

10 February:

and sought an order in the exercise of the

inherent jurisdiction of this court to stay
the order of surrender and the warrants which
were issued pursuant to it. If the order of
surrender is executed by conveying the

applicant to New Zealand, it would be futile

to prosecute the application for special leave

to appeal.

So, that is the issue His Honour had to consider.

At the top of the page, 249, in a very short

passage, His Honour made clear what his attitude

was:

The applicant's argument attacks the

Federal Court's interpretation of the Act and

especially s 27 thereof. Although I am far

from persuaded that this argument is likely to

succeed, if special leave were granted, I am

unable to say that the prospect of a grant of

special leave is insubstantial.

So that the test His Honour was applying was, "Is

the prospect of a grant of special leave

insubstantial?", which would seem to be a somewhat

different and lesser test than the one espoused in

Burgandy Royale. We respectfully submit that is

the appropriate test where the liberty of the

subject is concerned.

His Honour went on to say that:

When the urgency of preparing the

applicant's argument is relieved, it may be

that the argument will be further refined and

strengthened sufficiently to induce this court
to grant special leave to appeal. That leads

me to consider whether a stay of the order of

Elliott 20/12/93

surrender would cause any prejudice to the

prosecution and where the balance of

convenience lies.

Your Honour, in this matter the only issue, we

respectfully submit, with which the Court needs to
be concerned on this application is whether it

could be said that the prospect of a grant of

special leave is insubstantial, there being no

evidence of anything else, we, having taken

whatever steps were available to us to seek a stay.

What in fact happened was that the court refused

the stay but suspended the operation of its orders

until 4 pm today. So, from 4.01 pm today, the

applicants are all at risk of being charged with

serious criminal offences.

Your Honour, in each of the cases of the two

applicants for whom Mr Judd and I appear,

affidavits have been filed in relation to their

personal position and I will not trouble

Your Honour with the details of that matter.

HER HONOUR:	Yes, I have read those.
MR SHER:	But it is important to emphasize, we submit, that

while the Court's attention has necessarily been

focused essentially on Mr Elliott, there are - and

Mr Jarrett, another individual, Mr Lally is

representing three other people, and there are

already two Bank of New Zealand people have been

charged with offences, and their reputations, their

liberty and the like are all now seriously at risk.

The application for special leave which has been put together in something of a hurry but none

the less deals with the matter in some detail,

Your Honour, raises as the first major point the

question of the correctness of the decision of the

Full Court in effectively saying that whilst the

Court has a jurisdiction to interfere in the

criminal process in an exceptional case, this is

not an exceptional case because it involves, in
effect, a contest on the facts.	So that - - -

HER HONOUR:  Yes, I understand that. However, is there not

a more preliminary point? It was an application

for leave to appeal.

MR SHER:  Yes. I understand - I am conscious - I am certain

my learned friends were going to raise it if

Your Honour had not. We are conscious of the fact,

Your Honour, that this is an application - assuming

that we are talking of special leave - in respect

of an order refusing leave to appeal from an

application of an interlocutory injunction. None

the less, that is the way the matter has arisen.

Elliott	20/12/93
HER HONOUR:	Where the questions of law have not been

finally determined.

MR SHER:  But they have from the viewpoint of the

applicants. They have been finally determined

adversely in a way which finally determines his

position. His whole action in so far as it seeks

to prevent charges being laid has been finally

determined in that sense.

HER HONOUR:	Yes, I understand that.
MR SHER: Your Honour, it has just happened in that way.	It

is not as though the court, at either level, has

finally decided this matter in the exercise of a clearly correct exercise of discretion. In each instance we say that in so far as any discretion

was involved, it was based upon an erroneous view

of the law, and the Full Court's discretion, in so

far as it was exercised, was based upon the premise

that, "Well, the court, ultimately, will not

interfere here", so it was predicting, as did

Mr Justice Foster, what a court on final hearing

would do, because of a view it took as to what the

legal position was. It was, in substance, "If

you've got a contested issue of fact, you're not an

exceptional case, one of the kind in which the

civil courts will interfere."

Now, it is acknowledged, Your Honour, quite

readily by the applicants that the question of

interference in the criminal process by a civil

court calls for exceptional circumstances, but we

respectfully submit this is such a case.

The leading case on which we rely in of a very

recent decision of the House of Lords which we

contend represents the law in Australia.	I will
hand to Your Honour a copy of that decision.	It

has been slightly marked up but I do not think in

any corrupting way, Your Honour. This case really

highlights, we submit, the principle of law which

the Full Court got wrong. It was a case involving

an illegal extradition. I do not know if

Your Honour has had an opportunity to read this

decision.

HER HONOUR:  No, I have not.

MR SHER: If I can tell Your Honour, shortly, what it was

about. The appellant in the House of Lords have

been, effectively, kidnapped from South Africa and
put on trial for criminal charges in England and
his kidnapping had, in effect, been the product of
the work of the authorities. There was no

suggestion that his trial could not be a fair one.

The real issue was should he be tried at all

Elliott 20/12/93

because of the circumstances on which he came

before the court. It is a bit like the Eichmann

case in Israel.

Now, at first instance, the trial judge had

said, "Well, it's not a matter for me to decide

whether or not he is properly before the court" and

he proceeded to try the appellant who was

convicted. He then appealed to the Court of Appeal

who took the same view and, ultimately, it came to
the House of Lords on the question of whether or
not the courts could, in effect, refuse to try him

because of the wrongful executive action that had

got him before the courts in the first instance.

If I can take Your Honour to the leading

judgment of Lord Griffiths at page 102, and

Your Honour will see at paragraph B the issue is

defined:

Your Lordships have been urged by the

respondent to uphold the decision of the

Divisional Court and the nub of their

submission is that the role of the judge is

confined to the forensic process. The judge,

it is said, is concerned to see that the

accused has a fair trial and that the process

of the court is not manipulated to his

disadvantage so that the trial itself is

unfair: but the wider issues of the rule of

law and the behaviour of those charged with

its enforcement, be they police or prosecuting

authority, are not the concern of the

judiciary unless they impinge directly on the

trial process.

Now, that was the issue. I take Your Honour down

the page to between paragraphs G and H, Your Honour

will see what the appellant was saying:

The appellant contends for a wider

interpretation of the court's jurisdiction to

prevent an abuse of process and relies

particularly upon the judgment of Woodhouse J

in Reg v Hartley, the powerful dissent of the
minority in United States v Alvarez-Machain

and the decision of the South African Court of

Appeal in S. v Ebrahim.

And I take Your Honour now to page 104, and the

paragraph commencing between C and D Your Honour

will see reference there to a recent unreported

decision which is now, in fact, reported. There,

His Lordship said:

And in a recent decision of the Divisional

Court in Reg v Croydon Justices, Ex parte

Elliott 20/12/93

Dean, the committal of the accused on a charge

of doing acts to impede the apprehension of

another contrary to section 4(1) of the

Criminal Law Act 1967 was quashed on the ground that he had been assured by the police that he would not be prosecuted for any
offence connected with their murder

investigation and in the circumstances it was

an abuse of process to prosecute him in breach

of that promise.

Your Lordships are now invited to extend

the concept of abuse of process a stage

further. In the present case there is no

suggestion that the appellant cannot have a

fair trial, nor could it be suggested that it

would have been unfair to try him if he had ·

been returned to this country through

extradition procedures. If the court is to

have the power to interfere with the

prosecution in the present circumstances it

must be because the judiciary accept a

responsibility for the maintenance of the rule

of law that embraces a willingness to oversee executive action and to refuse to countenance

behaviour that threatens either basic human
rights or the rule of law.

My Lords, I have no doubt that the

judiciary should accept this responsibility in
the field of criminal law. The great growth
of administrative law during the latter half
of this century has occurred because of the
recognition by the judiciary and Parliament

alike that it is the function of the High

Court to ensure that executive action is

exercised responsibly and as Parliament

intended. So also should it be in the field

of criminal law and if it comes to the

attention of the court that there has been a

serious abuse of power it should, in my view,

express its disapproval by refusing to act

upon it.

And over the page, the point directly relevant to the present case is discussed by citing Lord Devlin

in Connelly v Director of Public Prosecutions.

Your Honour will see in the third line a reference to it, starting:

It is to my mind unthinkable that in such

circumstances the court should declare itself

to be powerless and stand idly by; I echo the

words of Lord Devlin in Connelly v Director of

Public Prosecutions:

Elliott 10 20/12/93

"The courts cannot contemplate for a moment

the transference to the Executive of the

responsibility for seeing that the process of

law is not abused."

The courts, of course, have no power to apply

direct discipline to the police or the

prosecuting authorities, but they can refuse

to allow them to take advantage of abuse of

power by regarding their behaviour as an abuse

of process and thus preventing a prosecution.

HER HONOUR:  How is the prosecution prevented in that

situation?

MR SHER: His Lordship goes on to say precisely that in the

next paragraph, Your Honour.

In my view your Lordships should now

declare that where process of law is available

to return an accused to his country through

extradition procedures our courts will refuse

to try him if he has been forcibly brought

within our jurisdiction in disregard of those

procedures by a process to which our own

police, prosecuting or other executive

authorities have been a knowing party.

The matter is well and truly discussed in

other judgments but that is the thrust of the
majority judgment. There was a dissent from

Lord Oliver but the other four Law Lords dealt with

the topic. The only other judgment that I would

like to take Your Honour to on this matter is

Lord Bridge at the bottom of page 109.

We will be contending, Your Honour, that the

only effective way here that the applicants can be

protected from being unlawfully accused of crime

and subjected to all the consequences of that would

be to prevent the charges being laid and, indeed,

what we are suggesting here is this is not a

fragmentation of the criminal process but a

prevention of it starting. It is a somewhat unique

case in Australia but it is not unique in the

United Kingdom, and I will take Your Honour to two

recent decisions of the Court Appeal where a
prosecution has been prevented.

There are cases in this country in which it is clearly suggested that the Federal Court has the

power under the Administrative Decisions (Judicial

Review) Act to stop a prosecution, and I will give

Your Honour some references, shortly, to those.

But, effectively, Your Honour, the only way - - -

HER HONOUR:  To stop or to prevent?

Elliott 11 20/12/93

MR SHER: To prevent. In that sense, this case is unique

but, in our submission, there is absolutely no

reason why an injunction of the type sought here

should not be granted if it were established that

the prosecution of the applicants was the product

of a knowing wrongful abuse of power which has, as
its objective, charging and putting somebody on
trial to demonstrate the effectiveness of the
prosecuting authority. It is, in effect, carrying

out what we say is the unlawful purpose by the mere

fact of charging.

HER HONOUR:	Do you have findings of fact?
MR SHER:	I will come to that. That is really, if I may use

the expression, the gut point, Your Honour. There

is some authority on that question. But if I can

just shortly finish a reference to the major case

we rely on, which we say represents the law in

Australia as well. Indeed, Mr Justice Foster expressed the view in his judgment that this point

had to be resolved by the High Court. He could not

say it was the law in this country at this stage.

Lord Bridge, at the bottom of page 109,

paragraph H said this, after citing with approval a

dissenting judgment of Mr Justice Woodhouse in one

of the New Zealand cases:

Whatever differences there may be between

the legal systems of South Africa, the United

States, New Zealand and this country, many of

the basic principles to which they seek to

give effect stern from common roots. There is,

I think, no principle more basic to any proper

system of law than the maintenance of the rule

of law itself. When it is shown that the law
enforcement agency responsible for bringing a

prosecution has only been enabled to do so by

participating in violations of international

law and the laws of another state in order to

secure the presence of the accused within the	territorial jurisdiction of the court, I think
that respect for the rule of law demands that
the court take cognisance of that
circumstance. To hold that the court may turn
a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to
my mind, an insular and unacceptable view. Having then taken cognisance of the
lawlessness it would again appear to me to be
a wholly inadequate response for the court to
hold that the only remedy lies in civil proceedings at the suit of the defendant or in
disciplinary or criminal proceedings against the individual officers of the law enforcement
agency who were concerned in the illegal

Elliott 12 20/12/93

action taken. Since the prosecution could

never have been brought if the defendant had
not been illegally abducted, the whole

proceeding is tainted. If a resident in

another country is properly extradited here,

the time when the prosecution commences is the
time when the authorities here set the

extradition process in motion. By parity of

reasoning, if the authorities, instead of

proceeding by way of extradition, have

resorted to abduction, that is the effective

commencement of the prosecution process and is

the illegal foundation on which it rests. It

is apt, in my view, to describe these

circumstances, in the language used by

Woodhouse J. in Moevao v Department of Labour,

(1980) 1 NZLR 464, 476, as an "abuse of the

criminal jurisdiction in general" or indeed,

in the language of Mansfield J. in United

States v Toscanino, 500 F.2d 267, as a

"degradation" of the court's criminal process.

To hold that in these circumstances the court

may decline to exercise its jurisdiction on

the ground that its process has been abused

may be an extension of the doctrine of abuse

of process but is, in my view, a wholly proper

and necessary one.

Now, the two English cases that establish that a

prosecution can be stopped, and indeed,

Your Honour, the unique feature of this case which

makes it unique and rare, is that it is not often

that a person is going to have an opportunity to

stop being charged. It is only because of the peculiar circumstances of this case that these
proceedings can be brought. But it is submitted

that there is no reason in principle why, if you

have that warning and you can identify the nature

of the charges likely to be brought against you,

you should not be able to prevent those charges being laid because of the consequences of being

charged to which the affidavits in part refer.

The two English cases, which I will not deal

with at any length, Your Honour - although I am

sure Dr Jessup will refer to one for one reason - are the case of Reg v Chief Constable of the Kent

County Constabulary, ex parte L (a minor), (1993)

1 All ER 756. That was a case in which there were

policies in relation to the prosecution of minors

for criminal offences and the view was that they

should not always be prosecuted. It was not

necessarily in the public interest to always prosecute a young person. The effect of the decision of the Court of Appeal was that there was

the power to prevent a prosecution and if I can

take Your Honour to page 770, Your Honour will see

Elliott 13 20/12/93

at paragraph din the judgment of

Lord Justice Watkins, which was the judgment of the

court:

I have come to che conclusion that, in

respect of juveniles, the discretion of the
CPS to continue or to discontinue criminal

proceedings is reviewable by this court but

only where it can be demonstrated that the

decision was made regardless of or clearly
contrary to a settled policy of the Director
of Public Prosecutions evolved in the public
interest, for example the policy of cautioning

juveniles, a policy which the CPS are bound to

apply, where appropriate, to the exercise of

their discretion to continue or discontinue

criminal proceedings. But I envisage that it

will be only rarely that a defendant could

succeed in showing that a decision was fatally

flawed in such a manner as that.

What had happened in that case, Your Honour, was,

again, it was a situation which was different to

this because the prosecution had commenced, was

that undertakings and assurances had been given to

a young person - I am sorry, that is the other

case. This is a case involving a young person who

sought to have reviewed by judicial review by way

of certiorari a decision to prosecute which review

was successful.

The other case was a case involving a murder

in which a young man, also a minor, of 17 had

been - - -

HER HONOUR:  Could I just go back. The charge had been laid

in L?

MR SHER:  Yes. I think that is right, Your Honour; I will

just have that checked. The other decision is the

unreported case referred to in the House of Lords,

The Croydon Justices - - -

HER HONOUR:  Yes, a mandamus to compel discontinuance of the

proceedings.

MR SHER:  Yes. Ex parte Dean, (1993) 3 WLR 198 - these are

all recent cases, Your Honour will have observed -

involved a murder investigation where the applicant
who was aged 17 had effectively been promised that

he would not be prosecuted, that he was going to be

part of the prosecution team. He was ultimately

charged and an attempt was made to quash a
committal order on the basis that it was an abuse

to charge him in the light of the assurances he had

been given. The court quashed the committal and

made it clear that it regarded what had happened as

Elliott 14 20/12/93

an abuse. The relevant passage is at page 204 and

the point that will be drawn to Your Honour's

attention by Dr Jessup, if I do not do so, is

between paragraphs E and F where the court said:

If it is necessary for the disputed issues of fact in this case to be resolved by

oral evidence, I consider that we should

decline to deal with it by way of judicial

review and should leave it to the Crown Court

to decide whether there is abuse of process.

It is only if we can decide the point on the

undisputed facts, together with any other

facts that we feel bound to accept as true,

that we should undertake the task. But if

that is indeed the situation, I consider that

quite exceptionally we ought to reach a

decision. Otherwise there will be an

unnecessary inquiry, probably lasting several

days, in the Crown Court and yet further

delay.

So my learned friends will say to Your Honour,

well, that is a case that indicates that you should

not interfere where you have got disputed issues of

fact, but if it is clear, then you can, and that is

why in this particular instance the Full

Court - - -

HER HONOUR:  That was an application for prerogative relief.

It may be somewhat different in a case for

injunctive relief, may it?

MR SHER:  Yes, perhaps if I could just come back to that

later, Your Honour, if I may. I just want to make

the point now that our submission is - and I will
take Your Honour to three passages in judgments in
this country - that there is absolutely no reason

in principle why the fact that there is a contest
on the facts should prevent, in an appropriate

case, a civil court who would otherwise interfere

from involving itself in a matter in which it is

alleged there has been a serious abuse of power and

that criminal proceedings should not be brought at

all.

The three cases that have touched on this

question, and very lightly - it does not seem ever

to have been seriously considered by anyone,

Your Honour - is firstly, not in point of time, but

the first case I want to take you to is a decision
of Mr Justice Lee of the Supreme Court of

Queensland in which His Honour reviewed authorities on this topic and made an observation which is

pertinent to the present issue. Coco v Newnham was

an attempt to prevent committal proceedings being

Elliott 15 20/12/93

carried into effect on the basis of illegally

obtained evidence.

His Honour reviewed all the authorit:es to date that had been drawn to his attention and

summarized them at page 433 and 434. What

His Honour was doing was explained by him at the

bottom of page 432. It is a very convenient

summary of a lot of authority, Your Honour, and on

an application such as this, something that is

convenient. It seems to have an attraction,

certainly to counsel, and I suspect to the Bench.

At line 40:

The foregoing apart, it is clear from a

long line of cases referred to by the parties.

that whilst the power exists in the Supreme

Court to make a declaration with respect to a committal proceeding or a criminal trial which

is in train, it is only in special

circumstances that the power will be

exercised:

Then at line 9 on the following page:

From these authorities the following

principles emerge:

Principle (4):

The court is reluctant to interfere where the question depends upon the admissibility of

evidence alone: Sankey v Whitlam (CLR at 25)

per Gibbs ACJ, although it might be justified

in doing so if it was prepared to decide the

whole question of admissibility:	ACS v
Anderson per Holland J (at 487-8).

So Mr Justice Lee seemed to be accepting that there

would be appropriate cases in which the court might

interfere. The two references that are there

given, if I can take Your Honour firstly to

Acting Chief Justice Gibbs in Sankey v Whitlam,

142 CLR 1, I think it is, and the passage is at

page 25. I hand the report to Your Honour and draw

Your Honour's attention to the bottom of page 25 -
I am sorry, if I could just go further up the page.

This is the page that His Honour refers to in Coco

v Newnham as containing some suggestion about this

issue. Your Honour will undoubtedly recall what

Sankey v Whitlam was about and it was a successful

application to interfere with a committal

proceeding which had been on foot on and off for a

period of three years.

Elliott 16 20/12/93

HER HONOUR:  Again by way of prerogative relief or an

application in the nature of prerogative relief, I

think, under the State - - -

MR SHER:	I think it was a declaration, Your Honour.
HER HONOUR:	A declaration, was it?
MR SHER:	One of the matters that was sought to be dealt

with was whether the offence charged was an offence

known to law and Your Honour will see on page 20

the heading, Declaratory Relief.

HER HONOUR:	Yes.
MR SHER:	In dealing with declaratory relief, the

Acting Chief Justice said, at the top of page 25:

The question whether the power to grant declaratory relief extends to enable the court

to declare that particular evidence is

admissible or inadmissible, or that the

evidence led by an informant is sufficient to

make out a prima facie case, is a much more

difficult one, because it is not so clear, in

such cases, that the plaintiff has any

"right", even within the widest sense of that

word, in respect of which he can seek relief. Grave doubts on this point were expressed by

Hutley J.A. (with whom Moffitt P. agreed) in

Acs v Anderson, but I need not consider

whether there would be power to grant

declaratory relief in all such cases. In my

opinion it would be within power to grant a

declaration of the kind sought by Mr. Sankey

in the present case. It seems to me that when

an informant has properly required the

production on subpoena of an admissible

document, and the Commonwealth has objected to

the production of the document on the ground
that the public interest requires that it

should not be disclosed, it is possible to

regard the Commonwealth as asserting, against the informant as well as against the court, a "right" to withhold production of the

document, and that in those circumstances the

court has power to grant declaratory relief if

the objection is held to be untenable. The

same reasoning would not justify the making of

a declaration that documents for which

privilege was not claimed should not be

admitted, but as will appear I need not decide

whether it would be proper to make a

declaration in such a case.

In any case in which a declaration can be and is sought on a question of evidence or

Elliott 17 20/12/93

procedure, the circumstances must be most

exceptional to warrant the grant of relief.

The power to make declaratory orders has

proved to be a valuable addition to the

armoury of the law. The procedure involved is

simple and free from technicalities; properly

used in an appropriate case the use of the

power enables the salient issue to be

determined with the least possible delay and

expense. But the procedure is open to abuse,

particularly in criminal case, and if wrongly

used can cause the very evils it is designed

to avoid.

And I think His Honour goes on to say something

further. But it is in that passage that

Justice Lee says there is some indication. But- we

would respectfully suggest that such an indication

as exists is less than crystal clear and it does

seem to be a concession that in an exceptional case
it is appropriate to deal with an evidentiary

issue.

More directly is the reference in

Mr Justice Holland's decision.
Mr Justice Holland's decision in ACS v Anderson,

(1974) 2 NSWLR 482 was the first instance decision

which was steps taken in the course of a committal

seeking a declaration as to whether a liquidator of

a company had power to waive legal professional

privilege attaching to communications between the

company's solicitors and its officers. So it was a

committal on foot and an application for a

declaration. It went on appeal and was

unsuccessful on appeal. At pages 487 and 488

Mr Justice Holland deals with this question.	I am
sorry, Your Honour, I have to apologize for the

fact that there is only one copy of this in Court.

HER HONOUR: If you just read the passage.

MR SHER: 

At page 487 His Honour discusses the question of

the ruling being incidental to a question of the
admissibility of evidence, and His Honour said at

paragraph F:

Arising out of the foregoing observations, there are two other considerations which, in my view, are against

the discretion being exercised in the present

case. Firstly, the magistrate's ultimate

conclusion was that the solicitor's evidence
was inadmissible. This Court is not being

asked to review that conclusion, but only one

of a number of points upon which its

admissibility depends, It is the

admissibility of the evidence that is claimed

Elliott 18 20/12/93

to be important to the prosecution's case, and

not the power of a liquidator to waive

privilege by itself. I do not think that this

Court would be justifie0 in intervening on a
question of admissibility of evidence arising

in committal proceedings unless it was

prepared to decide the whole question of

admissibility, including the question of

relevance, and not just part of it.

So it is clearly authority for the proposition that is stated by Mr Justice Lee.

Your Honour, our submission to the Court is

that on a special leave application it would be

appropriate for the Court to say that the

limitation that the Full Court imposed on civil

courts in reviewing a matter which is connected

with the criminal process, namely, that you do not

get involved unless you have got, in effect, a neat

point of law, and you do not get involved if you

have got a contested issue of evidence, is wrong in

principle, that the issue that will arise -

HER HONOUR:  Could I interrupt you there? Was that,

however, said in the context of an assumption that

the crucial issue was one of admissibility of

evidence?

MR SHER: Well, it probably was, and that is erroneous as

well because this case, whilst admissibility was

clearly a very important issue - and I will explain

shortly why - it was not the principal case that

the applicants sought to make. Each applicant here

was saying to the Court that the two law

enforcement agencies here have knowingly been

involved in an abuse of power. They have

investigated a matter without authority and they

must know that they are investigating it without

authority. They have collaborated over a period of

years in that conduct.

Mr Elliott's case went further than the

others. He alleged that there were ulterior

purposes, and as to that there was a whole body of

evidence put before the Court. The reason why

admissibility came into the debate was because

there were two points of time at which the question

of the legality of their conduct as affecting the

evidence that had been collected had to be

considered. Under section 12 of the National Crime

Authority Act - and I will hand a copy of that Act

to Your Honour - again, it has got some marks on

it - you have got a copy there?

Section 12 provides for a mandatory

transference of material to relevant prosecuting

Elliott 19 20/12/93

authority. Your Honour will see that section 12

provides that:

Where, in carrying out an investigation under

paragraph 11(1) (b) or subsection 11(2), the

Authority 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, the Authority must assemble the

evidence and give it to -

and then three prosecution authorities are

identified. So before handing the matter over, the

question of the admissibility of the material has

to be considered. Secondly - and perhaps I should

just say this about section 12. Section 12 refers

to obtaining material both pursuant to a reference

from either the Commonwealth or the States or

otherwise, so that however the authority comes upon

material indicative of a criminal offence it is

mandatory to hand it over to prosecuting

authorities, but it has to deal with it on the

basis of admissibility.

The second way in which the question of

admissibility arose is this: that tendered in

evidence were the prosecutorial guidelines of the

Director of Public Prosecutions, and prosecutorial guidelines, which are common throughout the

Commonwealth to both Commonwealth and State DPPs,

emphasize the importance of the decision to

prosecute and require in making that decision to

have regard to the admissible evidence. So that in

deciding to hand the material over the NCA has to
consider the admissible evidence. In making a

decision to prosecute the OPP, if they are the

person making the decision, have to consider

admissibility and it was our contention that

Mr Seymour, the policeman who had made the

decision, also has to make that evaluation. The reason why admissibility was not the only

question, Your Honour, is that even if the material

was admissible, it is our contention on the

applicant's case that the conduct of the

investigation into what was described as the
foreign exchange matter was unauthorized, not

properly approved by the inter-governmental

committee, had been carried on for an improper

purpose, and essentially was illegal. The case

that the applicant sought to make primarily was a
Horseferry Road Magistrates' Court, Ex parte

Bennett-type case.

To ask the Court to say, if the object of this

whole exercise was to be seen to be effective in

Elliott 20 20/12/93

charging some prominent citizens with criminal
offences, it is that conduct which ought to be

prevented because otherwise the rule of law is

being flouted, the law enforcement agencies are

conducting themselves illegally, and even if a fair

trial can be had, and even if the accused were

guilty, we say that that sort of behaviour should

not be sanctioned by the courts.

I might say, Your Honour, in relation to the

question of guilt, the respondents led no evidence
at all relevant to that issue, not one scrap of

evidence. On the contrary, the applicants put in

material that indicated lack of guilt.

HER HONOUR:  When I interrupted you it was about this notion

of contested facts takes you outside the relief.

Whereabouts will I find it in the Full Court

decision?

MR SHER: In two places, Your Honour: in the judgment of

the joint judgment at page 20 and following. It is particularly to be found at pages 24 and 25, and if

I can quickly run through that I can highlight the

relevant parts of it. If Your Honour goes to the

top of page 20 Your Honour will see that they first

of all acknowledged that it was going too far to

say that certain of the questions raised by the

applicants are not seriously arguable. Their

Honours indicate what they were, and they went on

to say in the middle of that paragraph at the end

of about the ninth line:

The critical question before the primary Judge

was whether, even if seriously arguable

questions had been established before

His Honour, the Court should exercise its

discretion in all the circumstances in favour

of restraining by injunction the laying of

charges and the furthering of the prosecution

of the applicants. His Honour treated this

question as one of the balance of convenience.

approached simply as an exercise by the Court

of its discretion in deciding whether to grant or refuse interlocutory injunctive relief does

not matter.

Whether the matter is examined that way or

As the primary Judge recognised, it is

well settled that an exceptional case must be

made out in order that this Court should

intervene in the criminal process, by way of

judicial review.

They then went on to discuss the Full Court's decision in the case of Smiles v Federal

Commissioner of Taxation and cited passages from

Elliott 21 20/12/93

that judgment which in turn cited passages from

other judgments, and Your Honour will see those

appearing on pages 21 and 22. So having brought up

this issue of faxceptional circumstances -

HER HONOUR:  You do not quibble with that, do you?

MR SHER: No, not at all. Their Honours then said in the

middle of the page:

Two illustrations of the exceptional type of

case which must be made out before a civil

court should intervene in criminal proceedings

may be given.

They then referred to Sankey v Whitlam, and

you will see the underlining in the judgment, ·
Your Honour, which indicates that which the Court

thought was important: principally a question of

law. Then they refer to their own decision in

Young v Quin, a decision which we respectfully

submit is wrong, in which they were dealing with a

magistrate overruling an objection of

cross-examination of a police officer on public

interest immunity grounds where there was an error

of law. Can I take Your Honour to the top of

page 24. Perhaps it is probably desirable to read

from the bottom of page 23. In citing a passage

from his own judgment in Young v Quin,

Mr Justice Lockhart and Mr Justice Beaumont said:

His Honour said, correctly I think, that it

would normally be undesirable to embark upon a

review of a magistrate's ruling on a matter or

evidence except where the ruling related to a

genuine and important question of legal

principle not dependent upon the detail of the

evidence in the particular case.

So they cite that with approval. They then go on

to say at 24:  Although these are no more than examples

of cases falling within the exceptional class
of matters where judicial review is

appropriate in criminal proceedings, none of

their features is present here.

They then discuss the matter a little further

and say, in the middle of page 25 - and this would

seem to be the real heart of their decision -

perhaps if I can go to the top of the page:

There are cogent, and obvious, policy

considerations underlying the reluctance of

the civil courts to interfere collaterally

with the initiation of a criminal prosection

Elliott 22 20/12/93

(see, for example, Barton v The Queen). The

applicants do not, at this stage at least,

claim that the charges they apprehend will be

brought disclose no offence known to the law.

Although this is understandable in the light

of the circumstance that no charge has yet

been laid, it means that no case could be made

here, at this point of time, for the grant of

a Sankey v Whitlam type of declaration.

Further, the present matter is not one where the relevant facts are not contentious or, if controversial, at least within a short

compass.

So that is really a major reason advanced by them

for saying it is not an exceptional case.

It is plain that both the background and

primary material sought to be established by the applicants in evidence is of substantial
proportions and that most of it is

controversial. If we were to grant leave to

appeal, the appellate court would be faced

with the difficulty that the relevant facts

would not be readily ascertainable, even at

the interlocutory level.

I need to deal with and will in a moment.

Can I take Your Honour to page 15 of Justice

Sheppard's judgment. After citing Yates v Wilson,

in which the Full Court of this Court indicated it

was only exceptional cases under the AD(JR) Act

that the Federal Court should intervene in a

criminal matter, His Honour said at about point 7:

The number of cases in which the Court has

intervened is small. The circumstances have

usually been confined to questions concerning

whether charges brought charge an offence

known to the law or matters of statutory

construction which are in a short compass.

Your Honour, take, for example, this situation

to test the point:  assume that my learned friend's

instructions were that the allegations of the

applicants were correct, that they sought to defend

the prosecution in a way similar to that in England

in the recent House of Lords decision by saying,

"It is really not a matter for the Court to concern

us with as to how the accused gets here. He is

here, he will get a fair trial. It is true that we

investigated a matter without authority, we had an

ulterior purpose for doing it, but we have got the

goods on him and we can prosecute him and show he

is guilty and it is not the Court's business how we

got it, II

Elliott 23 20/12/93

In those circumstances, we would submit, the

Court clearly would interfere if the House of Lords

decision represents the law in this country. They

deny th<3 allegations, they say, "No, we have done

nothing wrong", and su by that mere denial they

shut out the review and the prevention of the

prosecution that would otherwise be available,

which means that there is a premium on wrongdoing.

If you really want to be a villainous law

enforcement agency you can break every rule in the

book and because you contest it you are going to

prevent a review of your conduct, other than

through the criminal court process which we say is

limited and insufficient, but provides no answer to the damage that will be done by putting the accused

on trial.

In Victoria, Your Honour, the evidence reveals

that if these people are charged they will be

probably dealt with at committal level some time in

the latter part of 1994, the committal may or may

not go for weeks, depending upon the course
adopted. If they are committed for trial - and we

say Grassby's case in the High Court says it is not

a matter for the magistrate to determine where

there has been abuse of power - they will not be

tried until 1995 in a trial that may go for months.

In the meantime, they lose their liberty; they have

to be bailed; their ability to move around is

impeded. Mr Elliott has sworn an affidavit in

which he has referred to how it has already

effected his ability to conduct his affairs.

They suffer enormous public ignominy.

have all the worry and concern, and they incur
enormous expense which is irrecoverable, merely by

They

being charged. Ultimately, they may get to a trial

court some year or more hence, raise all these

issues, and as the special leave application makes

clear, they are subject to a whole series of
difficulties in relation to running this particular

argument. My learned friend Dr Jessup's clients

are not parties; evidentiary issues such as Jones v

Dunkel are not available against them; discovery is

a very limited feature of criminal proceedings and

Alister's case makes clear how difficult it can be.

You cannot get discovery or interrogation.

The ability of an accused person to run a

matter such as this in the criminal courts, we say,

is very much less than it would be in the civil

courts. This is all brought about because the

respondents choose to say, this would be our case,

"Well, I deny all these allegations of wrongdoing",

and make an evidentiary issue of it.

Elliott 24 20/12/93

In principle, we say, there should be no

difference between the two, and as the

investigation into the matter will be conducted by

a judge sitting alone - who in Victoria could be

the same person if it is a Supreme Court trial - it

could be a judge exercising civil jurisdiction one

day and criminal the next - there is absolutely no
magic in this matter being dealt with in the

criminal courts and a great deal of harm and

disadvantage to the applicants.

Your Honour would be familiar with passages in cases both in this country and in England rejecting the concept that ultimately being acquitted and

bringing an action for malicious prosecution
provides an adequate safeguard. In Your Honour's

judgment in Jago Your Honour cites with approval

the passage in the joint judgment of

Acting Chief Justice Gibbs and Mr Justice Mason in

Barton/s case and there are passages in English

cases. It might be useful, perhaps, just to take demonstrate the enormous damage that it has done to

people by being charged and tried and ultimately

acquitted.

HER HONOUR:	I am wondering whether all of this is really to the point because there must be a difference
between an interlocutory injunction pending final
resolution of the matter, and final relief by way of prohibition certiorari or mandamus, which seems to have been what has been granted in the English cases. That is to say, the question must be is there evidence of - well, it gets you to the threshold that there is - - -

MR SHER:  The Full Court has said there is. In that short

passage I referred to, they refer to the serious

questions to be tried.

HER HONOUR:  But what is the serious question to be tried,

in your view?

MR SHER:  Your Honour, there is a whole series of them, but

for present purposes it is our respectful

submission it suffices if there is just one.

HER HONOUR:  Yes. The one which would - you say, would have

to be one which would be of the kind considered in

Horseferry Magistrates/, would it not?

MR SHER: Right. Can I take such a point which does not

depend on allegations of mala fides. There were

three attacks made upon the legality of the

investigation. Firstly, it was said that there had

not been the proper consultation and approval of

the references. In relation to that, evidence was

Elliott 25 20/12/93

placed before the Court of an affidavit sworn by a

former Victorian minister in a defamation action

brought against the ABC which revealed that he,

effectively, was the informant to the ABC, but

talked in terms of him becoming aware of the

investigation in 1990. The reference from the

Commonwealth Attorney-General had been in 1989.

Our case was that there could not have been

consultation required by the Act, otherwise

Mr Crabb could have sworn that he knew about it in

1989, not 1990. As against that inference, we say,

was the product of both Mr Crabb's affidavit and

the fact that as a Victorian minister he would not

know the details of a Commonwealth investigation

because he is not allowed to be told. All he would

know about would be the fact of the reference. It

must mean that he was not consulted in 1989. As

against that, Mr Justice Foster relied upon some

hearsay evidence from the minutes of the

inter-governmental committee and a former employee

of the former Attorney-General who said that,

"Mr Bowen told me he had rung everyone up".	We say
there was no consultation.

The second more important point is this, that

the references in their terms do not refer to the

foreign exchange matter at all. We have copies of

the references here, Your Honour, and I will, if

necessary, take you to them. But not only do the

references not refer to the foreign exchange
matter, nor to any breach of the law relevant to
the foreign exchange matter, but we put in evidence

another document discovered in the defamation

proceedings which is exhibit A44, and I would like

to ask Your Honour to have a look at that document,

if I may. It is exhibit A44.

The importance of this document, Your Honour,

is that it was said by the respondents that the earlier references - there being six altogether

that were proved in evidence - had been reissued or
revised in the latter part of the year.	So that

the material which produced the earlier references

is the material that produced the latter

references. Your Honour will see from this

document, which is a document the ABC had been

given apparently by Mr Crabb, how the matter was

commenced. If I can take Your Honour to the first

page of it, Your Honour will see that it cites a

letter from Mr Bosch, the Chairman of the NCSC

dated 16 November 1989, in which Mr Bosch says

this:

We have reviewed the work programme

before us and have come to the conclusion that

there is one investigation that fits your

Elliott 26 20/12/93

criteria outstandingly well. We have been

concerned about the way in which some

directors of Elders IXL have gained effective

control of one of Australia's major companies.

It goes on to talk about breaches of the law.	So
what he was referring was one matter and it was
that effectively the Harlin takeover of Elders.

That is clear from the following page, when you
look at paragraph 4 under the heading "Details of
Relevant Criminal Activity".

Allegations have been made to the Authority by the National Companies and Securities

Commission that those directors of Elders IXL

who are associated with Harlin Holdings Ltd

may have committed offences under a number of

Commonwealth and State Acts, and at common law.

It then proceeded to describe Harlin Holdings and

something about it. It goes on on the top of the

next page to say:

The circumstances in which these transactions

occurred imply that the Elders directors

associated with Harlin (the associated Elders

directors) may have committed offences under

the Companies Act 1981, the Security Industry

Act 1980, and the Companies (Acquisition of

Shares) Act 1980 (all Commonwealth), the

corresponding Victorian and South Australian

Codes, secret commissions legislation and the

offence of conspiracy to defraud at common

law. Associations or understandings are

alleged to have existed between Harlin and
other companies in relation to the control of

Elders.

They then expressed their conclusion. They

have exhibited to this document, if Your Honour

looks at the last page, a list of the dramatis
personae concerned in this wrongdoing.	What is

significant about this list is not who is in it,

but who is not in it. The foreign exchange matter

is said to concern Mr Hawkins and a company in New

Zealand called Equiticorp and the Bank of New

Zealand, none of whom are mentioned. More than

than, Mr Camm, one of the applicants, is also not

mentioned.

It is clear, we say, from this document - and

there was absolutely no evidence led by the
respondents on this topic. They did not explain

why the references were issued later in the year

which was on counsel's advice. They objected to

the production of counsel's advice. They said

Elliott 27 20/12/93

absolutely nothing about it, and evidence was given

by a solicitor, Janet Whiting, who had acted for

somebody summoned to appear before the NCA that she
had raised the question of whether the fnreign

exchange matter was within their terms of reference

and had been told by Mr Livermore, a solicitor at

the NCA handling the matter, "Well, if it does not,

we will get one". Mr Livermore was not called to

give evidence and her evidence was not denied.

Mr Justice Foster queried it but, we say, in the

absence of any denial, her evidence was rational

and acceptable and should have been acted on.

Your Honour, if, in fact, NCA - and the DPP

has been liaising with the NCA for two years and

falsely denied that it accepted a reference from

the NCA in conversations with the lawyers for

Mr Elliott - if in fact for over two years, to the

knowledge of the DPP who cannot use the NCA for his

investigations, they have been investigating an

unauthorized matter, the question that then arises

is why. Why is it not explained, and how can they

possibly justify using their coercive powers in

this fashion to obtain all this evidence.

Mr Seymour and Mr Sherman were unable to say

pursuant to which references the investigation had

taken place, but Mr Seymour admitted that he had

acted on material back to early in 1990.

Your Honour, we say it is clear from that

material that there was a serious question to be

tried as to whether or not the NCA and the DPP's

office had co-operated in an unlawful

investigation.

HER HONOUR: Yes, I understand that.

MR SHER: There is another one, too.

HER HONOUR: There is another one? Well then the question

arises:  assume all that is in your favour, would

that be a matter of a kind that would bring about

the same result as was brought about in Horseferry

Magistrates?

MR SHER:  We would suggest it would because unless the

Courts are prepared to say to the law enforcement

agencies, "We will not tolerate you breaking the

law, using coercive powers that affect the liberty

of the subject in a way which is unlawful, and to

your knowledge unlawful, for an unexplained purpose

and we will not permit you to charge people as a
consequence", then they are effectively free from

review. That is the importance of this case and

that is why we say the court at the interlocutory

level should have preserved the status quo to

enable this matter to be properly investigated.

Elliott 28 20/12/93

After all, all the applicants were seeking,

Your Honour, was to preserve the status quo while
there was a proper informed investigation of this
matter on the basis of the prima facie case

established. Rather than the fact that it was an

interlocutory proceeding be an argument against us,

we respectfully submit that it is an argument for

preserving the status quo while the matter is
properly investigated. Because if it is shown
ultimately that the inferences which are open are
the correct inferences to be drawn, there being no

relevant answering material from the authorities,

well then the Court may well conclude at the end of

the day that this is a Horseferry Road situation.

But that, really, at the end of the day,

Your Honour, was the major issue in the case and

what it means is that if their objective is to be

seen to be effective by charging a prominent

citizen such as Mr Elliott, and they put themselves

in the position to do it by a whole series of

illegal acts in gathering material over a period of

years, unless that is prevented they are really

beyond review. The remaining question, then, is

what is the best place to do it, in the civil

courts or in the criminal courts?

In the criminal courts the applicants suffer

enormous damage for which we say there is no

adequate remedy by merely being charged and put on

trial, and if it is a judge alone inquiry, there is

no reason why it should not be done in the civil

courts, particularly as the civil court here, the

Federal Court, had an extraordinary range of powers

which the criminal court does not have. Our

argument was that under section 39B of the

Judiciary Act and under the Administrative

Decisions (Judicial Review) Act the Federal Court

had powers which no other civil court has, they are

exclusively vested in the Federal Court.	Our
argument was that those powers enable an
investigation and an appropriate relief which would
judge.
A criminal court judge would have to go a

not necessarily be available to a criminal court

further step, we say, than the Federal Court

because the Federal Court is entitled to examine

not merely decisions affecting people's rights, but

conduct leading to decisions.	I feel Your Honour
is about to ask me something.

HER HONOUR:  Yes. Then you come to another question, do you

not? Whether laying of charges is either a
decision under an enactment or conduct under an

enactment?

Elliott 29 20/12/93

MR SHER: It is, with respect, and there is clear authority

in the Federal Court. I will just take Your Honour

to two cases, one of them is the Full Court's

decision in the case of Quin, which is in itself a quite extraordinary decision. If I can hand Young

v Quin to Your Honour. The two cases that I refer

to are Young v Quin and Lamb v Moss. Young v Quin

was, as Your Honour can see from the headnote,

there had been objection to the questioning of a

witness in a criminal trial in relation to the

question of public interest immunity. A claim to

public interest immunity had been - not a criminal

trial, a committal - made by the Crown and the

magistrate had said, "I will allow you, counsel for the accused, to cross-examine the deponent claiming public interest immunity during the committal

proceedings".

The applicant, who was the Crown and who

objected to this course being followed, applied to

Mr Justice Wilcox under the AD(JR) Act for a review

of the decision of the magistrate during the

committal to allow cross-examination.

Mr Justice Wilcox refused the application and then

the Crown appealed to the Full Court.	The
Full Court said, "Yes, not only have we

jurisdiction to deal with this matter", that is to

say, a ruling by a magistrate in relation to the

cross-examination of a witness, "but the magistrate got it wrong as a matter of law and we are going to

interfere".	So that is what happened in Young v
Quin.

In Lamb v Moss, which is - and I did not cite

the reference but it is in the judgment, it is

(1984) 4 FCR 483 - again, there was a quarrel about

the question of a cross-examination during a

committal. I am sorry, Your Honour, I think

Your Honour asked me a different question.

HER HONOUR:  Yes, I did.

MR SHER:	You were asking about decisions to prosecute.
HER HONOUR:	Yes.
MR SHER:	Sorry.

HER HONOUR: Is the laying of charges - - -

MR SHER:  Can I take Your Honour to Newby v Moodie, a

decision of the Full Federal Court. I suddenly

realized I had gone off on a bit of a tangent

there, Your Honour. I was trying to prove that

there was plenty of authority for interfering with

criminal proceedings under the AD(JR) Act. Newby v

Moodie is more to the point. That is reported in

Elliott 30 20/12/93

83 ALR 523, and I will hand a copy to Your Honour.

I will ask Your Honour, again, to ignore the

markings on the pages to which I will be taking you

in any event.

Newby v Moodie is a Full Federal Court

decision under the AD(JR) Act and it concerns a

decision to prosecute. The appellant was served

with summonses before a local court relating to

breaches of the Taxation Offences Act. The

decision to prosecute had been taken by the OPP and

he sought to stay the proceedings on the ground of

abuse of process. An application was made to the Full Federal Court seeking review of the decision

to prosecute, which was dismissed and it was then

appealed to the Full Court.

If I can take Your Honour to the bottom of

page 524, the joint judgment of the court is to

this effect:

The grounds upon which judicial review

was sought were that the decision to institute

and maintain the proceedings against the

appellant was contrary to law because the
prosecution was oppressive and an abuse of
process, and that the decision was an improper

exercise of the power to prosecute, either

because the respondents failed to take
relevant considerations into account or

because the decision was oppressive and an

abuse of power, or both. The learned trial

judge dismissed the application, being of the
opinion that the decision sought to be

reviewed was not within the class of decisions

which are reviewable under the Judicial

Review Act. His Honour expressed the view

that even if a case had been made out that the

decision was reviewable under the Act, he would have refused to grant relief in the exercise of his discretion.

So the very issue that Your Honour asked me about
came up in the case.	At page 526, at line 35:

Was the decision to prosecute reviewable under

the Judicial Review Act?

And they go straight into that question:

The learned trial judge was of the

opinion that the decision to prosecute was not
reviewable under the Judicial Review Act. In

reaching this conclusion he relied on a number

of authorities -

and they are named -

Elliott 31 20/12/93

However, we do not think those authorities are

conclusive of the question whether the
decision sought to be reviewed in this case

was within the class of decisions made

reviewable by the Judicial Review Act.	The
most relevant of those authorities is
Toohey's case -

now I think that is an error; I think they meant

Barton's case. If you read on you will see:

which was concerned with the question whether

a decision of the Attorney-General to present

an ex officio information was reviewable at

common law. That is a different question from

the one presently under consideration.

If I might take Your Honour now to page 527

GAUDRON J:  But are we not close to that question here in

that you have got a police officer, apparently,

exercising the rights of any citizen to launch a

prosecution?

MR SHER:  But there is a lot of evidence in the case

directed to showing - and this is the third general

issue that we took up, was that he was really no

more than an agent for or the alter ego of the NCA.

He was an Australian Federal policeman who had been

seconded to the authority; he said he was working

as a member of a team; the evidence was he was

subject to administrative direction; when

Mr Sherman was questioned as to what that meant, he

could not really explain it, but it was put to the

test very simply in this case by when Mr Elliott,

through his lawyers, asked for postponement of a
proposed interview, it was not Mr Seymour that

decided that issue. It went immediately to his

superiors and was dealt with by them. And there

was a lot of evidence led with a view to showing,

and our submission was it was a clearly tribal

issue, that he was not truly exercising an

independent judgment at all, he was merely just

doing his job as a member of the NCA. And more

than that, we had this somewhat farcical, certainly

amusing, situation were he was purporting to do it

as a Victorian policeman. In the course of his

cross-examination emerged he might not have been

properly sworn in.	He was then sworn in - it does
not really matter;	Dr Jessup and I do not agree on

this, but what I am about to say is

incontrovertible.	He was then sworn in again
during the course of the proceedings.	He was

further cross-examined; it appeared he had not been

properly sworn in for the second time and he was

sworn in the third time. Now, this is the man who

had already set the whole matter in motion,

Elliott 32 20/12/93

ostensively as a Victorian policeman. He was not a

Victorian policeman until the middle of the case.

GAUDRON J:  My question was directed to something else, that

is, whether you ever lay a charge as anything other

than an ordinary citizen?

MR SHER:  He did not purport to do so as an ordinary citizen

and if he was an ordinary citizen, section 12 of

the NCA Act had been disobeyed because section 12

of the NCA Act, we say on its proper construction,

is designed to protect a citizen from a decision to prosecute being made by an ordinary citizen. It is

designed to ensure that you do not get prosecuted

as a result of an NCA investigation unless

appropriate prosecuting authorities have formed the

independent view that you should be prosecuted, and

I will come to that in a moment. The section to

which I have taken Your Honour provides three

gateways for a decision to prosecute based upon NCA

investigations, and if you look at them they are

all either institutions, such as a police force or

a relevant minister or department of the Crown.

Our respectful submission is that if what

Mr Seymour had purported to do was as a private

citizen,and it is not something he said he did; his
evidence was he was doing it as a Victorian

policeman, albeit he kept having to be resworn. It

was not the case they sought to make, Your Honour,

and it was not the evidence.

The third non mala fide argument that we

raised - and I will deal with what

Mr Justice Foster said in a moment - was

effectively this:  we said, "It is clear law", and

it was not contested, indeed, it was clearly

admitted, "that the NCA has no power to lay

charges", it just has no power to do it. The DPP,

on the other hand, has the power to institute a

committal, but the OPP made it clear it was not

threatening to charge anyone.	And what they were
both doing - but it said, "The moment Mr Seymour
lays a charge, we are going to take it over.	We

will prosecute." In fact, when the Bank of New the DPP who briefed counsel and appeared in Sydney

to have them on their charge. We have the NCA on

the one hand investigating, we have the OPP on the

other hand going to prosecute, and interposed

between these two large, well-endowed financially,

and with personnel, bodies, is this policeman, who

is purporting to act as an independent Victorian

policeman, and our submission was that it was

really just a device to get over the difficulty,

self-imposed by the OPP and lawfully imposed by the

NCA, that neither of them could charge, and it was

really a charade.

Elliott 33 20/12/93

Now, as to that, Mr Justice Foster said,

"Well, using a policeman seconded to be sworn in,

that is a common sense and convenient way of doing

it", and he pointed to the problems of another

person having to spend considerable time to acquire

the knowledge, which Mr Seymour had acquired as an

NCA staff member. Now that is precisely what

should have happened, we say, and that is one of

the fundamental errors of Mr Justice Foster's

judgment, and our contention is that the Full Court

should have recognized that and said, "Look, there

are serious questions to be tried as to whether

this investigation was authorized", either because

it had not been approved properly, or because the

terms of reference did not include it, or because they were using a device merely to get over their

lack of power to charge people.

Now, there were two rather fascinating pieces

of material available on this issue; one was put
before the court and it was this: the OPP and the

NCA had apparently made between themselves a

written arrangement about how they were to co-

operate, and it was put in evidence and became

marked as "OPP l". By clause 5 of that document,

it became clear that it contemplated the NCA

charging people; something they are not lawfully

entitled to do. What had become available since
the hearing is the latest annual report of the NCA,

which refers to, in terms, in its annual report:

Of that total 478 people have been charged

'directly' by the NCA on 2,361 charges and

60 people on 630 charges in task force

arrangements.

And they boast about how successful they have been

in relation to people they have charged. I will

make a copy of that available to Your Honour that I

have just read from their report.

Now Your Honour, we say that there is another
really serious issue here.	Here is a body set up

against a lot of opposition, with inbuilt

safeguards to protect individual liberties, has

Draconian powers, coercive powers of investigation

and has no power on the other hand to charge
anyone, and we say that is a deliberate policy

decision by the legislature to provide between the

citizen and this body a protective device, namely

an independent consideration by a proper law

enforcement agency, independent of the NCA to

prosecute. We say it just did not happen here and

it is clear that Mr Seymour was just a device.

Now, none of that depends upon mala fide.

They may have thought, "Well, that is a convenient

way to operate and save a lot of trouble", but it

Elliott 34 20/12/93

is unlawful. Unless the Court interferes and stops

that behaviour, there is nothing to prevent them

continuing on doing precisely that and the next

annual report will boast of all the other people

they have charged as well. Now, that, we say, was

a serious issue to be tried and Newby v Moodie,

which I was in the process of reading, makes clear

that, under the AD(JR) Act, the Federal Court has
the power to intervene in decisions to prosecute

and conduct leading to decisions to prosecute.

If I can take you back to page 527,

Your Honour, line - - -

GAUDRON J:  I have got it open. You say - if I could just

clarify this with myself for my mind - that the

decision or conduct here is decision or conduct

under the NCA Act?

MR SHER:  They deny it; they say, we are not doing anything

that we say you are and you can only be doing it
under the NCA Act and the Federal Court has decided

if your only powers come from an enactment, that is

a reviewable decision under the AD(JR) Act.

GAUDRON J:  Yes.

MR SHER: That is essentially the case, and at page 527 the

Full Court makes it clear that the decision under review in that case:

was a decision to which the Judicial Review

Act applies -

Your Honour sees that at line 12.

In our opinion this decision was a

decision to which the Judicial Review Act
applies, being a decision of an administrative

character made under the Director of Public

Prosecutions Act. Indeed, on the hearing of

the appeal counsel for the respondents did not

contend to the contrary.

And they then go on to say why, and it is a useful analysis, Your Honour. Line 20:

We think the question is put beyond doubt

by reference to the Schedules to the Judicial

Review Act. Decisions in connection with the

prosecution of persons for offences against
the laws of the Commonwealth are not excluded
from the classes of decisions to which the Act
applies (Sch 1) but are specifically excluded
from the classes of decisions to which

section 13 of the Act applies: Sch 2,

para (e)(i). We think this is a clear

Elliott 35 20/12/93

indication of a legislative intention that a decision to prosecute for an offence against the laws of the Commonwealth may be made the subject of an application under the Act, but

that the decision-maker is not required to

furnish a statement in writing of the reasons
for his decision or of the other matters

referred to in section 13.

As was said in Lamb v Moss (1983)

49 ALR 533 at 556-7, the Judicial Review Act

was intended to provide remedies for wrongs

done to individuals whose interests were

adversely affected by administrative decisions

and this court is not justified in taking a

narrow view of the wide language used by

Parliament in the Act.

Of course, Your Honour, against both the NCA and

Mr Seymour and Mr Sherman, we also contended their

conduct was reviewable under section 39B of the

Judiciary Act on the basis that they were officers of the Commonwealth.

Now this is one of the other interesting

questions to be tried. It is contended that

Mr Seymour was not an officer of the Commonwealth,

but there is considerable authority, including

authority in this Court, that the question of your

role depends, amongst other things, on who pays

your salary, and Mr Seymour's salary was paid by

the NCA, well certainly by the Commonwealth;

Mr Sherman clearly was an officer of the

Commonwealth. I will not trouble Your Honour with

all the case law on the question, but it was

clearly an arguable point, and I do not think my

learned friends would contend it was not arguable,

although they would no doubt contend the argument

ought to go their way.

So, Your Honour, in short, we say of this case

that there are a large number of issues regardless

of mala fides, which were fit to be tried. The

whole thrust of the applicants' case is to stop

being charged and if there is an arguable case on
that basis, in our submission, the applicants ought to have their day in court, in a court that has the power, and we say, the ability to deal with the

matter in a proper way, and quickly. As opposed to

the Criminal Court, if one accepts my submission

about how long it will take to get to a trial court

in Victoria, there was no reason why, if the

interlocutory injunction had been granted - and it

could have been given in November if we had been

successful - steps could not have been made

immediately for trial of this matter as soon as

possible. Now we are obviously going to have

Elliott 36 20/12/93

arguments about discovery but, none the less, we

could get this matter into court, we would submit,

far more quickly than could possibly be done in the

criminal jurisdiction, and without all the

attendant ignominy and loss of liberty and the

like, and in circumstances where, if the applicants

succeed, they can be recompensed for their costs,

whereas, in the criminal jurisdiction, if they

fight this and win, they might be rendered much

poorer by the mere process.

The Full Court made it clear - I refer to a

short passage in the joint judgment - in

Mr Justice Sheppard's judgment at page 14, he said:

Notwithstanding those considerations, my

conclusions, at least in relation to the two
points I have discussed, suggest that the
primary judge's view that there was no prima

facie case should be displaced.

So the Full Court was unanimous. Actually,

His Honour went on to say something further, which

we rely on, at page 14, lower down that page at

about point 6, the sentence commencing at the very

end of the line with the word "If":

If this matter concerned an aspect of the

civil law, not touching upon the

administration and enforcement of the criminal

law, there would be much to be said for the

course which counsel propose. But it is not.

The granting of relief would involve a

substantial interference with the

administration of the criminal law.

And that is when His Honour went on to effectively

decide the case on that basis.

Now, I am conscious of the fact that this is

an application for a stay but none the less it is a

matter of very real concern to the applicants, and

I do want to say a little about the mala fides

aspect of the case, Your Honour.

HER HONOUR:  Yes, certainly.

MR SHER: There was a great deal of evidence led on this

issue involving tendering many exhibits. One of

the extraordinary features of the case was that
there were clearly tactical decisions made by all

the respondents as to what evidence they would

place before the court. The OPP effectively put no

real evidence in at all. It tendered three

documents:	two self-serving letters and the
guidelines.

Elliott 37 20/12/93

The NCA - if I can call the three first

respondents the NCA collectively - put in two

witnesses:  Mr Seymour, who had been involved since

January of this year and did not even know under

what references he was acting and under which

references the material had been collected; and

Mr Sherman who is, in effect, at the other end of

the scale, who also did not know under what
references his organization was acting. And, of
course, he had only been involved upon it in the

organization about half-way through the

investigation.	A great deal had happened before he
had arrived.	His working knowledge of the matter,

clearly, was very limited.

It emerged that there were people, including

one gentleman who sat in court virtually through

the whole proceedings who was intimately involved

and could provide all the answers.

The Full Court made a number of rather

strange, and we say, clearly erroneous comments. It said, "We do not know the full details of the

charges." Mr Seymour admitted to me that he had

written them out. So if the court did not know the

details of the charges, it was because the

respondents did not put it before the court.

Mr Justice Foster had not placed before him any

witness that could be effectively cross-examined

about the mala fides issues. To say that

Mr Sherman could be cross-examined about what he

had done to investigate a series of leaks to the

media which had gone on over a period of years,

including during the currency of the case. We

tendered in evidence, Your Honour, newspaper
articles, both Australian and New Zealand, that

showed that during the currency of the hearings

before Mr Justice Foster when they were in camera,

and otherwise, material which Mr Sherman admitted

could only come from his office, the OPP or their

counsel, in respect of which he said he had made no

inquiry and did not intend to make one. That

included, Your Honour, details of what NCA

investigators were doing in London virtually at

that very moment in investigations.

It is clear, we say, that there was a clear

case of deliberate leakage of embarrassing material

to the media, both in Australia and New Zealand,

both before and during the currency of the case,

which showed that somebody was out to cause

Mr Elliott the most serious personal embarrassment possibly, and to harm him, and to further the

interest of the investigating authorities.

Effectively no witness was called that could be

seriously cross-examined about those issues and

about the issues in relation to the investigation.

Elliott 38 20/12/93

What Mr Justice Foster did was to totally

ignore the rules in Jones v Dunkel and the

Full Court in effect said, "Because interlocutory

proceedings are short and should be expeditious,

that is all right." What that really means is that

if the serious issue to be tried in an application
for an interlocutory injunction involves a
contested issue of fact and the party on the wrong

end of the application chooses to lead no evidence, it can do so now safely because no inference can be

drawn against it with greater confidence in

accordance with Jones v Dunkel, a distinction which

we submit is clearly unfair, unjustified and not

supported by any authority other than this

decision.

HER HONOUR:  But certainly, depending on the gravity of the

allegation, there will be a threshold point that

the applicant must reach too, will there not?

MR SHER:  Your Honour, I, with respect, agree, but in this

case we say the threshold was not passed. It was

cantered past and there was absolutely no evidence

called by either of the respondents that were

really in a position to call evidence, even as to

the nature of the charges, and Mr Justice Foster

said, "Look, I do not really know what this foreign

exchange matter is". Now, who could have told him

that? The people who were going to lay charges in

respect of it. They chose not to. They called no

witness that we could effectively cross-examine, we

say, about some of the most serious allegations, a
prima facie case of unlawful purpose having been

established. I do not know if Your Honour is

familiar with the material but -

HER HONOUR:  When I read the judgments at first instance and

in the Full Court, I rather got the impression that

it was not thought that you had established a case

in that regard.

MR SHER:	Your Honour, if I can just summarize the evidence?
HER HONOUR:	Yes.
MR SHER:	We tendered material that showed - - -
HER HONOUR:	But can I go beyond the judgments?

MR SHER: With respect, yes, because they are wrong, and A44

which Your Honour has seen is the clearest

indication of how wrong they are. That document

establishes what was the matter that was referred

to the NCA and that which was investigated.

The NCA's material was to the effect - we

tendered evidence that they claimed that the

Elliott 39 20/12/93

earlier references had been revised. In fact, the

minutes of the inter-governmental committee said

they had been reissued.

That evidence establishes, we submit, that

there was no authority to investigate the foreign

exchange matter at all.	None the less, they had
done so, and they had done so for years.	I cross-

examined Mr Sherman about a television broadcast on

the ABC in August 1992 in which he and his
organization had been publicly criticized for

failing to charge anyone in Australia,

notwithstanding the fact that at the time a

criminal trial was proceeding in New Zealand

allegedly in relation to similar matters. We

tendered in evidence the judgment of the judge in

New Zealand where you cannot be tried by a judge

alone apparently in a criminal matter, in which

His Honour had been asked to find by the Crown that

the motive for this foreign exchange illegality was
the payment of what was described as an H fee. And
the judgment reveals that the Crown had singularly

failed to prove who paid the H fee, what it was

for, and even that it was unlawful. There is not a

shred of evidence to suggest it was paid by Elders

or by any of the people threatened with charges.

So that there was evidence of absolute failure on

the part of the Crown to establish any wrongdoing.

On the first occasion the counsel for the NCA

appeared in this matter, which was the afternoon on

which ex parte injunctions were obtained, senior

counsel, Mr Finkelstei of Queens Counsel, said on

behalf of the NCA that one of their criticisms of

the ex parte application was that no material

relating to the alleged criminality had been put

before the judge. Now, who is in the best position to lead evidence of the charges that are threatened

and of the wrongdoing of each of the applicants.

Well, it is my learned friend's clients. Not one

shred of evidence was produced, Your Honour,

notwithstanding the fact that their counsel said it

should have been.

There was a wealth of material to show a

persistent series of news media leaks over a period

of some years which could clearly only have

emanated from the NCA or the DPP's office, none of

which were explained, and virtually none of which

had been investigated. Mr Crabb's role in the

matter, as the informant to the ABC, was drawn to

the attention of the NCA and a copy of his

affidavit provided to them. All they had done was

to take counsel's advice. Neither the ABC or

Mr Crabb have been charged with anything,

notwithstanding what we see as blatant breaches of

the law and serious misdemeanour in public office

Elliott 40 20/12/93

by Mr Crabb. So the NCA was shown to have been

totally indifferent to the serious embarrassment
constantly being caused to Mr Elliott over a period

of years in relation to their conduct.

So that there was a wealth of material to

suggest that there was a case calling for an

answer. More importantly, what the judge has said

in the Full Court was not so much that

Jones v Dunkel did not apply in this case, but it

did not apply in interlocutory injunction. An

extraordinary decision, in our submission, and one

that is quite important and will have effect
throughout this whole country on interlocutory

applications where any issue of fact is involved.

So that we say that is a serious matter and we say,

clearly arguable.

Your Honour would have read our submissions or in the affidavit concerning the - the special leave

application is probably one of the most important

affidavits that anyone ever settles.

HER HONOUR:  I have read them, Mr Sher, but you should not

assume I am totally familiar with them.

MR SHER:  I wish to just emphasise this, Your Honour, that a

very real complaint we have is the suggestion that

the criminal courts will provide to the applicants

a satisfactory forum for the adjudication of the

claim that is made that this proceeding against

them, this criminal proceeding, will be an abuse of

power and thus an abuse of process.

Your Honour, we submit that that is a legal

fiction. It was decided by the court without a

scrap of evidence to support the conclusion and indeed assertions were made in the judgments to

that effect. We point to the following

deficiencies between the criminal process and the

civil process, apart from the obvious delay that is

going to take place as a consequence. We say

firstly that the trial judge is not going to be

seized at any facts in relation to the matter which

will place him at any advantage over a civil court

judge because the argument will be concerned with

abuse of power, not guilt or innocence.

Secondly, we submit that the absence of

Messrs Sherman, Seymour and the NCA's parties to

any prosecution has two effects:  we cannot get

discovery from them, we cannot interrogate them, we
cannot rely on any evidentiary inferences against
them. In so far as the OPP being a party, in our

submission we will not be able to rely upon

evidentiary inferences against the OPP in relation

to other people's conduct, and we cannot get

Elliott 41 20/12/93

discovery against the OPP in any event, and it is a

fiction to assume that those guilty of abuse of

power will be candid and be forthcoming with all

relevant material.	So that everything will have to
be battled for.	In our submission, not only is

there no advantage in the criminal process for the
applicants, there are those disadvantages, and
there is absolutely no way in which they can get

costs if they are put to the expense of an

unnecessary trial. But, more importantly, as the

case is established.

HER HONOUR: Is that an absolute fact or - - -

MR SHER:  I know this Court has decided in - the name

escapes me - that in relation to the magistrates
court there is the power to seek an order for
costs, but there is no power to obtain an order for

costs in the trial court and Grassby 1 s case

determines that the question of abuse of power has

to be resolved in that court.

HER HONOUR:  You do not have a Costs in Criminal Cases Act

like there is in New South Wales?

MR SHER:	No, and if we did you could assume it would be
jealously guarded as though it was the guardian's
own money.
HER HONOUR:	I think that is generally what happens.

MR SHER: Grassby v Reg, (1989) 168 CLR 1, is an interesting

decision and would appear to involve the conflict

between this Court, the House of Lords and the

Full Federal Court. Grassby, as Your Honour may recall, concerned an attempt to stop a prosecution

at committal level at an early stage and the

High Court held in that case that:

a magistrate had no power to order of stay of

The headnote shortly states that. committal proceedings as an abuse of process.

The Full Federal Court has decided to the contrary without referring to Grassby's case in - I

am not sure if it might even be one of those two

cases I was erroneously discussing with

Your Honour, either Lamb v Moss or Quinn.

HER HONOUR:	Both of them were before Grassby.
MR SHER:	I do not think that is right, I think one of them

is after, but I may be wrong about that,

Your Honour.

Elliott 42 20/12/93

HER HONOUR:  Young v Quinn I was surprised was a 1984

decision, I thought. Here it is.

MR SHER: Certainly Quinn and Newby v Moody are before it.

HER HONOUR:	Lamb v Moss is quite old.
MR SHER:	Lamb was clearly before it, Your Honour, but

perhaps it is just the English decision that -

certainly that decision in the Full Court, if given

before Grassby, would have to be reconsidered.

But, I think the English courts have decided you

can review a magistrate - a magistrate has the

power. Smiles, I am right. They have recently
decided it, and we submit incorrectly, in Smiles'

case, which is one of the cases they rely on. If

Your Honour will just pardon me a moment I will get

a copy for you.

Smiles is 1992. Yes, it is since Grassby. If

Your Honour looks as Smiles, (1992) 109 ALR 449 and

the headnote you will see the very first point that

is decided and:

In an appropriate case, the Local Court

has the power to stay civil or criminal

proceedings before it which are an abuse of
process. This power is an essential attribute

of the exercise of the jurisdiction with which

the court is invested. Thus it was open to

the taxpayer to apply to the Local Court for a

stay of proceedings.

Jago, Williams v Spautz and Newby v Moodie were

referred to but not Grassby, and that would need, we

submit, to be corrected.

TS/FK

There is a House of Lords decision to the same

effect, the name of which escapes me, but it is a

fairly recent decision.	Would Your Honour just
bear with me a moment and I will find the name of
it.	I think it might even be one of those cases to

which I have already referred Your Honour. Junior

counsel is disagreeing with me now. I might have

this wrong but I am fairly confident I read, as

recently as this morning, Your Honour, an English

decision to that effect.	I think it might be ex
parte Dean.	In any event, it would seem sufficient

to justify the intervention of this Court in the

light of Smiles' decision.

HER HONOUR:  Very peripheral though, is it not, to your

case; very peripheral.

MR SHER:  If Your Honour takes the view that for a person to

have to wait until they get to the trial court

Elliott 43 20/12/93

which in Victoria will be some time in 1995 before

they can effectively raise this issue, and that at

they time they do it they will not be able, if

successful, to get any costs, not only do we have

the costs question, but extraordinary delay during

which they will be charged, their liberty will be

affected. In the case of Mr Elliott that is an

enormous burden for him.

HER HONOUR:	But you do not put this on the balance of convenience so much, do you, as the fact that there
are policy reasons why there should be jurisdiction in the civil court to prevent an abuse of the process.
MR SHER:	We say it goes beyond balance of convenience,

Your Honour. We say it is really a legal fiction

to suggest that as soon as somebody says this is a

criminal matter, off it goes to the criminal court,

and that an accused person can get all the

appropriate relief in that jurisdiction.

HER HONOUR:  But that merely indicates, does it not, that

they are the sort of features you have got to look

to to see whether there is an exceptional case?

MR SHER:  Yes, I, with respect, agree, but if a court works

on the basis that you are going to get all the

relief that you are entitled to elsewhere, and that

is wrong, then if you have other considerations

that make the case exceptional, that does not get

in your way. There are all sorts of reasons

advanced from time to time when courts talk about

not interfering in the criminal process through the

civil courts.	One of the arguments is you will
fragment the proceedings.	What will happen here is

if the civil courts do not intervene, the

proceedings will be fragmented and they will be

fragmented in this way. We say there will be no

fragmentation because we are trying to stop it at

source, so it will be an issue, as it were, not in

running, but at the commencement. But our point to the Federal Court was: this

Court has got the widest possible jurisdiction and uniquely empowered to deal with this matter. It

has exclusive jurisdiction under the Judiciary Act; it has exclusive jurisdiction under the AD(JR) Act,

which cannot be cross-vested to the Victorian

courts. It also has its accrued jurisdiction. It

also has, we say, the jurisdiction under the
cross-vesting legislation of the Victorian Supreme

Court in its supervisory - - -

HER HONOUR: All of that really is beside the point if there

is no remedy.

Elliott 44 20/12/93

MR SHER:  But there is a remedy and the remedy is an

injunction to prevent a wrongful prosecution; a

court refusing to allow the law enforcement

agencies to achieve their objective by putting

somebody on the wrong end of a criminal charge.

HER HONOUR:  And that is either a malicious prosecution, one

presumes, or a prosecution brought for an improper

purpose.

MR SHER: Yes.

HER HONOUR: Anything else? It must march, I should have

thought, as the law of tort.

MR SHER: It is tortious. There is an action on the case

probably available. It is allied to a case against

Mr Crabb for misfeasance in public office. It is a

complicated case with substantial civil overtones,
but we respectfully suggest to the Court that, as

has been observed in a number of cases, you just

cannot compensate in money for the consequences of

being wrongly charged and put on trial. Now, in

Victoria the sad fact is that the courts are so

clogged with work, as they are elsewhere, that it

is unlikely this matter can be resolved in a

criminal courts under a period of some years, and

during the whole of that time, each one of these

applicants - and I want to emphasize here

Mr Jarrett's position in contrast to Mr Elliott's,

because Mr Jarrett is caught up, as it were, we say
as an innocent victim of an ambition to try and be

seen to charge a prominent citizen like Mr Elliott,

but for all that time they are under strain and put

to expense and have their liberty infringed, and

their whole lives may be ruined, and there is no

compensation in terms of money for years of worry,

public ignominy and the like.

No money will compensate anyone for having to

sit in the dock of a criminal court for weeks or

months at a time and, effectively, they are imprisoned while they are being tried - they have	got to be present - and there is just no adequate
compensation. That is all the law will be able to
provide. We are also entitled to rely upon this,
Your Honour, that how do we know that in due course
these defendants will be able to meet any damages
bill. I mean, Mr Seymour - it will laughable to
suggest he ever could. Now, the OPP and the NCA
are publicly funded institutions; why should the public purse have to meet enormous claims for
damages which may flow against those bodies, assuming that they do need them, when a large part
of it can be prevented, and in our submission that
is - - -

Elliott 45 20/12/93

HER HONOUR:  But do we not come back to where we were

before. If you are right in the way you have put

the case, you have got to go some distance towards

showing either it is ·a malicious prosecution, as

that is understood, or that it is a prosecution for

an improper purpose of the kind that was discussed

in Spautz.

MR SHER: There was a substantial body of unanswered

evidence to that effect.

HER HONOUR:  But your findings do not support it. The

findings below do not support that.	In one respect
you have to accept that you probably	cannot prove a
malicious prosecution in the sense -

MR SHER: That, in a sense, makes the position even worse.

HER HONOUR:  Yes.

MR SHER: If we leave aside for the moment mala fides and

just deal with abuse of power but not a malicious

prosecution, just a totally misconceived abuse of

power, then it may well be that a civil action

might not succeed, but none the less there has been

an improper prosecution. But one of the problems

that we had - and Your Honour is talking now to me

in terms of an evidentiary onus, which obviously

you have to satisfy to some extent on an

interlocutory injunction, but the test is at a low

threshold. It is a question of a serious question

to be tried. It is not even a prima facie case,

and the Full Court in the joint judgment -

Mr Justice Sheppard expressed the view that if it

was a civil case we probably would have got our

injunctions. So that the evidentiary threshold, we

submit, was passed, and in dealing with the

evidentiary - - -

HER HONOUR:  It seems to me, if you read through the

judgment of the Full Court, the evidentiary

threshold might be passed in relation to discrete

issues, but overall, have you passed an evidentiary

threshold of malicious prosecution, or prosecution

for improper purpose?

MR SHER: Well, we say that we passed it comfortably,

Your Honour, and, indeed, we submit that the court effectively recognized it by saying if it was a

civil case, things would be different. And, of

course, in running into difficulties, as we did,

the courts have rejected the use of Jones v Dunkel,

which is - in a case in which the defendants - the

respondents - who know the facts, choose to keep

those facts to themselves; they would not even

reveal the specific nature of the charges; they

would not even tell the court what the foreign

Elliott 46 20/12/93

exchange matter·was; they had relevant witnesses

sitting in court that were not called and the judge

effectively said, "Well, you can't rely on any

inferences, because this is an interlocutory

application''. We say that is demonstrably wrong as

a matter of law. There is no law that requires a

court on an evidentiary issue - a serious question

to be tried - to reject those evidentiary aids

where there are people who know and choose not to

speak and, as Mr Justice Rich put it in Insurance

Commissioner v Joyce, who prefer the well of the

court. "Judges are entitled to be bold" is what

His Honour said.

Now, here the judges were intimidated by the

fact that there was a criminal charge in the offing
and the civil courts do not get involved in those

matters. Notwithstanding, I think I referred the

Court to no less than 11 decisions of the

Federal Court where they had acknowledged the

existence of the jurisdiction to interfere in the
criminal process under the AD(JR) Act and the

question we ask rhetorically, Your Honour: if

abuse of power is not an exceptional case, well

then, one is entitled to ask what is.

Is it an exceptional case because you have got

a neat point of law, which is what they seem to be

saying. We say that that puts a premium on serious

wrongdoing. It cannot be right that the civil

courts will turn a blind eye where you cannot

present them with a neat uncontested point of law,

uncontested other than as a legal issue, but you

can where you are prepared to say, "Well, I'm going

to fight you tooth and nail on every allegation of

fact that you make, even to the point of not

calling relevant evidence and rely on my silence,

and the inability of the court to draw inferences

is my protection". So you go to trial, you get

charged, your liberty is affected and on it goes.

I am conscious of the time, Your Honour, and

the nature of the application, but it is, we say, a

very serious matter. It is a unique case. It is a

case that calls for the intervention of this Court

and, to use the words of Mr Justice Brennan, which

I cannot find -

HER HONOUR:  Well now, I was just going to take you to that

in Narain.	I take it that is where you are going
to.

MR SHER: Yes, that is it. "Unable to say the prospect of a

grant of special leave is insubstantial".

HER HONOUR:  Well I was just wondering - I can well see why

that was an applicable test in Narain. Why, in a

Elliott 47 20/12/93

case such as this, would you not look to the

prospects of ultimate success?

MR SHER: Is Your Honour asking us in the High Court or the

Federal Court?

HER HONOUR: Yes, all round; ultimate success. Ultimately

in this case that is where you are looking to

before you get anywhere.

MR SHER:  Can I just say something about the High Court.

The High Court grants leave to appeal on occasions

where it regards it as necessary to state the law

and deal with controversial legal issues of

importance. We say this is such a case and, in our

respectful submission, this Court would grant

special leave on that point alone. This is a novel

and important case. It involves the rule of law,

the liberty of the subject and other matters of

critical importance such as the operation of the

National Crime Authority and its relationship with

a senior law enforcement agency in Victoria.

In relation to the Federal Court, we say that

Your Honour's question highlights a very serious

error of approach at that level, and it was this.

An interlocutory injunction is designed to preserve the status quo and the threshold that you need pass

is a much lower threshold. How can the Court

predict where we would end up in the Federal Court

until there has been a proper consideration of all

the issues after the discovery process and those

other processes have followed and there has been a

proper trial of the matter?

In our submission, this was an error

Mr Justice Foster made. He attempted to predict

the exercise of discretion of a court hearing the trial without the faintest idea of what the final

state of the evidence would be. The only reason -

and we come back really to the major issue here -

the only reason we lost, we say, at any level is

because of the reluctance of the courts to

interfere in the criminal process. We say that

that is not an evaluation that can be made in
effect at this stage when there is so much more in

the evidence that can be established. Most of the cases have concerned interfering when the position

is down the track somewhat.

We say in the unique circumstances of this

case, it is unfair really to a person such as the

applicants here to try and predict whether they

will win or lose at the end of the day. You cannot

predict at the end of the day whether they will be
acquitted or convicted on the material adversely to

them because, apart from the presumption of

Elliott 48 20/12/93

innocence, in the material they have put in
evidence there has not been one shred of material

put in to suggest they have done anything wrong.

It is an important consideration, we submit, and

was recognized by the NCA through Mr Finkelstein

the first time he appeared.

We do not even know precisely what the charges

will be, even though Mr Seymour has written them

out. Effectively, at the end of the day what the

applicants are complaining about is they really

have not had their day in court and they have been

ousted from the Federal Court effectively on

evidentiary issues which are necessarily incomplete

through no fault of theirs. What my learned

friends' clients have done has been, we say, very

shrewd and thus far very successful. They have not

exposed an important witness or called any evidence

that would enable us to further our allegations of

male fides.

They could have explained why the earlier

references were replaced by later references, which
is in recognition of some deficiency in them, and

have not only chosen not to do so, but objected to

any investigation of that issue. When we sought to

find out about the counsel's advice referred to in their report as to why the earlier references were replaced, they took objection.

Your Honour, there are parties uniquely placed

on the evidentiary side to put relevant miterial

before the Court, and one of our major complaints

is that they did not. Instead of that working in

our clients' favour, it has effectively been used
against them. In our submission, that is erroneous

as a matter of law. That is my answer to

Your Honour's question.	They are our submissions,
if the Court pleases.

HER HONOUR:  Thank you, Mr Sher.

MR SHER:  I have not found that English case but, if I can,

I will give it to Your Honour after lunch.

HER HONOUR:	Thank you.
MR LALLY:	Your Honour, the applicants for whom I appear,

Mr Camm, Mr Scanlon and Mr Biggins, are individuals who held positions of substance with Elders IXL

Ltd. Mr Scanlon was a director of Elders IXL and

Mr Biggins was an executive director of that

company. Mr Camm was the senior financial banker

with Elders Finance Group, a subsidiary company.

As Your Honour would have seen on the material that

has been filed in support of their application for

a stay pending the hearing of their application for

Elliott 49 20/12/93

special leave, they did not originally join in this

application that was made before Mr Justice Olney,

but what became apparent was that - and it is clear

from the charge sheet that Your Honour has seen

referred to in Mr Sher's material - that is the

charge sheet for Mr Psaltis and Mr Woods, who were

the New Zealand bankers, who were charged in Sydney

because they were not protected by the injunctions

that had been granted to protect those before the

court, being Mr Elliott and then subsequently

Mr Jarrett and then subsequently my clients.

It was accepted by Mr Justice Foster that, but

for those injunctions granted to my clients on
13 October and extended, each of them would have

been subsequently charged. The abuse of power

alleged does involve them directly because each of

those persons attended hearings of the National

Crime Authority back in November and December of

1990 which was conducted by the National Crime

Authority using its coercive powers.

Your Honour will have seen reference to section 25 of the Act which involves the hearings

and the balance that has to be obtained in the

legislation of protecting the individual's rights

who give evidence before such a body as the NCA.

Of course, exhibit A44, to which reference has been

made, was not known to them, but they are adversely

affected by the decision that has clearly been made

to proceed with the charges. Their way of

defending themselves really depended upon what

evidence was forthcoming in these proceedings.

Mr Sher has mentioned it, and I accept it is

difficult for an appellate court considering
questions that involve superficially matters of

admissibility of evidence at a trial, but the

significance in this case is really quite important

because it is there that you find the tussle and

the wrench between finding a balance to protect	these people who have attended the NCA and have	subjected themselves to exercise of the coercive
power and then what follows when a court, on the
hearing of an application for an interim injunction, says, "Well, I can only determine this on the state of the evidence that's before the
court."

On the one hand it can be said this is a civil

case that involves really a determination of the

powers of the NCA and its Act, and you do not need

to go further because the laying of charges is the

commencement of the criminal process. But then

unavoidably the court then said, "Well, we have to

look down the track and let's look to see whether

or not the rights of these people could be

Elliott 50 20/12/93

adequately protected once that criminal process

commenced. "

In my submission, that is really the crux of

the error that was made by the Full Court, that
having determined that there were serious questions
to be tried and that those serious questions
related to the question of whether the terms of the
reference, being the basis of the power that was
exercised, were sufficient to authorize this

investigation made under the coercive powers, what
that court should have done was then say, "Well,

having regard to the decisions that have been made

in the court below as to what evidence the

respondents chose at their peril to put before the
court", the court should have then viewed it as a

civil case. Having found the answer to those two questions, "Is this a case involving the terms of reference?", "Did it authorize the NCA to proceed to the stage it was?", what evidence has been put before the court that would enable the court to

come to a decision on that issue?

When the respondents chose not to put that

evidence before the court, the mistake the Full
Court made was to say, "Well, let's not worry about

Jones v Dunkel; let's look ahead to what might

happen further down the track, not in a civil case

but in a criminal case." Your Honour can see the

difficulty that is then faced when one poses the

question, as Your Honour did to Mr Sher, "What is

to be the ultimate chance of success?" The

difficulty that is encountered is primarily because

of that decision that was made by the respondents,

and if the Full Court had said, "We'll look upon it
on a civil basis", the evidence was all one way.

Having found, in contradistinction to the judge at

first instance, that there were the serious
questions, it should have been said, "Having regard

to the fact of failure to call, an injunction ought

criminal process, they were again wrong because to have gone." Looking down the path of the

they assumed that the rights of the individuals

would be adequately protected.

Mr Coady is a solicitor experienced in

criminal litigation who had sworn an affidavit that
was filed at first instance on behalf of the
applicant Camm. Your Honour will see in the

material that he has sworn an affidavit that sets

out the position in Victoria that prevails. That

is an affidavit sworn on 17 December, Your Honour.

HER HONOUR: Yes, I have that. That is about delays and the

discovery processes, et cetera.

Elliott 51 20/12/93

MR LALLY: It does, Your Honour. It also deals with what

happens in the criminal process if the sort of

application that is to be made is one that involves

questions of abuse of process. That is what the
fundamental application here was, and that the Full

Court has found in favour, that the serious

questions relate to whether or not the - - -

HER HONOUR:  When you use the expression "abuse of process",

what do you mean?

MR LALLY: In this instance, it would be proceeding to

disseminate the material that was obtained at the

NCA hearings at which my clients attended and

allowing that material to be used for the purpose

of having charges laid and the prosecution

commence. It is not simply my clients.

HER HONOUR: That is not the relief you have sought, is it?

MR LALLY: Yes, in this sense, that the practical step that

can be taken is to prevent the laying of charges.

It is too late to -

HER HONOUR:  This surely was dealt with in the Full Court.

There is no reason to assume that that is the only

evidence on which charges would be based.

MR LALLY:  No, but that is where the Full Court, with

respect, falls into error because it seeks to make

assumptions about matters that are - - -

HER HONOUR:  You could have challenged that aspect quite

simply, could you not, on the basis of an

application under the AD(JR) Act of perhaps under

the Constitution, the Judiciary Act, for an order

under section 12, or for a declaration in effect

under section 12, that that was not admissible

evidence that could be given to an authority

specified in subsection (1). But you have gone

well beyond that. In fact, you have never asked

for that.

MR LALLY:  No, because it is only when these proceedings are

under way, when it is clear that we would be

charged, that the applicants are in a position to

see some of the evidence that bears on the very

point, being A44 that tells as to what the state of
the references were, as to whether the Authority

had the power to conduct the hearings that it did.

It is not a case where they are in any position

prior to being involved in this proceeding, and the ability of the Court to intervene arises because of the state of the evidence that, prima facie and

unanswered and as accepted by the Full Court, would

show that there has been an exercise of power being

the conduct of hearings at which applicants attend

Elliott 52 20/12/93

and give evidence that goes through to being used

in charges.

I accept Your Honour's point that there may in some instances be opportunities for applications to be made, but here it involved really the good luck

that in that defamation proceeding that involved

Mr Elliott and Mr Crabb that relevant evidence that

did go to the point was unearthed. But other than

that, my clients would not have been in any

position to have any relevant evidence until - - -

HER HONOUR:  Are the references not attached to the notices

to attend hearing or something like that?

MR LALLY:	Yes, the references are attached and they use language that is general and does not refer to the
foreign exchange matter, and the significance of
A44, if Your Honour has that again - a reference is
needed for each matter being investigated and it is
not sufficient to just have one reference for a
number of matters. There are two matters in this case to be distinguished, and one is the Harlin matter which involved takeover involving directors of Elders IXL, and the other matter to be distinguished is the foreign exchange matter which
involved, as it is identified in the judgments,
moneys being paid to the Bank of New Zealand.

HER HONOUR: Quite unrelated to the takeover.

MR LALLY:  Quite unrelated to Harlin. The significance of

the exhibit that was discovered in the defamation

proceedings is that when one has a document that is

broad on its face and there comes into existence a

document that is specific and it shows that it

relates to one of the matters upon which the source

of power is relied upon by the Authority, this

document shows if that be the matter, it must have

been the Harlin one, and that is the arguable

matter. If I could just take Your Honour to the

first page of A44 which says: 

Submission pursuant to section 10 of the

National Crime Authority Act 1984

It is the heading at the top of A44.	Does
Your Honour have that?

HER HONOUR:  Yes, although I have got nothing that iridicates

that it is A44.

MR LALLY: That is at the very front.

HER HONOUR:	Thank you, yes.
MR LALLY:	Your Honour will see under the heading:

Elliott 53 20/12/93

The National Companies and Securities

Commission

By letter dated 16 November 1989,

Mr Henry Bosch, Chairman of the National

Companies and Securities Commission, referred

the matter to the Authority.

Then if Your Honour goes over the page to page 2,

immediately under the line that says:

Counsel have advised as follows on the second

point:

"In our view, if the Authority determines to

investigate the matter further it will be

absolutely essential for the Authority to

utilise all the powers vested in it for the

purposes of undertaking its special

functions --- those powers are only available
to the Authority under the provision of a
reference or references pursuant to section 13

and/or 14 of the Act".

The next paragraph, 3, the reference there to:

A reference was issued by the Commonwealth on

21 December 1989.

That identifies that the relevant reference that

has been spoken about is a Commonwealth reference

No 9 in the material, Your Honour, because that is

the date of that particular reference. Under the

legislation, details of the relevant criminal

activity have to be given. If I might go to the

second paragraph under that heading, it says: Harlin Holdings Ltd (Harlin) is a company

registered in the Australian Capital Territory

controlled by a number of directors of Elders

IXL (Elders). Elders is registered in South

Australia. Its head office is in Victoria.

Majority control of Elders recently passed to

Harlin, following a complex series of transactions involving not only those two

companies but also other companies including

the Broken Hill Proprietary Company Ltd, APP

Investment Corporation Ltd, SA Brewing

Holdings Ltd and Goodman Fielder Wattie Ltd.

The circumstances in which these

transactions occurred imply that the Elders

directors associated with Harlin (the associated Elders directors) may have

committed offences under the Companies Act -

Elliott 20/12/93

And then it goes on and sets out legislation. The conclusion is, in paragraph 5, Your Honour, in the

middle of the page:

the circumstances revealed by the information

held by the Authority concerning these

matters, and the allegations made, suggest

substantial planning and organisation by those

involved in respect of the relevant criminal

activities herein referred to -

And then over on the page my learned friend

Mr Sher referred to the fact that a list of people

who are identified as relevant people is set out

and he said to Your Honour that it was significant

because one of the people whose name does not

appear there is Mr Camm. Of course, Mr Camm is one

of the applicants for whom I appear and if this

were to be a reference that related to foreign

exchange matters you would have expected that the

Bank of New Zealand, certainly Mr Camm, would have

been referred to and so that that reference on its face would have seemed to be clearly relating to a

reference that entitled the authority to

investigate matters of the Harlin takeover.

So that when that evidence is looked at it

demonstrates the strength of what the Full Court

had found to be one of the serious questions to be

tried, that was in the majority judgment. The

issue is one that could have been easily determined

in short compass if the respondents who would have

all the material that could identify - - -

HER HONOUR:  Can I ask you this? One of the orders is

directed to non-disclosure of information other

than, I think, to Mr Seymour. Is that what your

argument is directed to? I have not got the

originating process, or perhaps there was not any.

Is your argument directed to that, I think it is

the third or fourth order?

MR LALLY:  No, the non-disclosure would have been in the

original relief sought.

HER HONOUR:  Yes, but your present argument is directed to

that, is it?

MR LALLY:	No, my present argument is directed to the - the reason the applicants find themselves in the
position of not being able to put before the court
at first instance and then the Full Court matters
that would have entitled the court to come to findings of fact, is that all of the relevant
evidence is really held on the other side of the
bar table because the applicants are people who
attended in response to summonses.  The evidence

Elliott 55 20/12/93

that is the subject of the charges that are

proposed to be relied upon, and certainly the

charges to date, those of Psaltis and Woods and

remembering that Psaltis and Woods are people about

whom it is said that Mr Elliott, Mr Camm,

Mr Biggins, Mr Scanlon, conspired, because that is

what is said on his charge, that we are linked.
And if we linked, the respondents could have and

should have put before the court the material that

would have identified matters that related to
whether or not there had been such an abuse of

power because it would have identified the material

that it had been relied upon.

HER HONOUR:	I think we will adjourn until 2 o'clock but, before we do, it does occur to me that there may be
different arguments to be directed to one of the
orders, being the order about non-disclosure, that
have not been put to me by Mr Sher or, it seems, by
Mr Lally and I do not know whether you want to
think about your position in that, that there may
be quite separate issues arising there.

MR SHER: It is a matter I should have addressed and I did

not. It has not really been dealt with by any one

as a separate issue thus far, Your Honour, and I

think I just went along - - -

HER HONOUR:  You may wish not to deal with it as a separate

issue, too.

AT 1.00 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.00 PM:

MR LALLY:  Your Honour had addressed a question to me that

involved paragraph 2(b) of the summons as to what

was the circumstances of seeking relief that
prevented other persons looking at the material
obtained by the respondents, or considering whether
to lay any charges against the applicants in

relation to the foreign exchange matters.

That had its source in events that had

occurred at the hearing before Mr Justice Olney

before my clients became involved and they are

matters to which Mr Sher has knowledge and I

propose to leave it to him because I was not

present when those events occurred.

HER HONOUR:  Thank you.

Elliott 56 20/12/93

MR LALLY: If I could leave the question of the references,

having taken Your Honour to A44 which, when

Your Honour reads the general references that are

there, you will see that the significance of A44 is

that it determines what certainly was not in it.

That was the submission that the Full Court found

had weight to it and -

HER HONOUR:  Now, where is that finding?

MR LALLY: If I take Your Honour to page 20:

In our opinion it goes too far -

If I go to the bottom of page 19, Your Honour will

see that what I had submitted was the inappropriate course to adopt was to look to what might happen in

the criminal proceedings for the protection. As it

says:

it would be open to the applicants, if and

when criminal proceedings are brought against

them by the appropriate prosecuting

authorities, to challenge, if they wish, the

validity and propriety (for example, whether

the criminal proceedings have been instituted

for an improper or ulterior purpose) of the
criminal proceedings in the courts exercising

criminal jurisdiction once charges have been formulated and filed and the issues in those

proceedings are defined.

In our opinion it goes too far, however,

to say that certain of the questions raised by

the applicants in this case are not seriously

arguable, in particular, the questions as to

whether the terms of the relevant references

are themselves capable of authorizing an

investigation into the foreign exchange matter

and whether it is competent for the NCA to

assist the OPP in the latter's conduct of

prosecutions in respect of the foreign

exchange matter.

So it is the first of those that are identified there that relate to the scope of the references

because without a reference there should not have been any conduct of the hearings exercising those powers.

HER HONOUR:  And you would say then, would you, that the

results of those hearings should not be given to

the OPP?

MR LALLY:  Yes.

Elliott 57 20/12/93

HER HONOUR:  By reason of an implied prohibition in

section 12?

MR LALLY:	Yes. There are other matters that - apart from them being infected because there was no power in
the first instance, the OPP should not receive them
for those purposes and they should not have been given to Sergeant Seymour in any event because Sergeant Seymour would not come within one of the
three categories in section 12 if he were a
policeman who was seconded to the authority. In
that sense, there is the lack of independence of referring the evidence as and when it is obtained,
because he remains a person seconded to the
authority and the agency that is referred to in (b)
is defined - at page 2 it is, Your Honour - and it
is in section 4 as the Australian Federal Police authority or person responsible for the enforcement of the laws of the Commonwealth or its states", and the force of the argument is that that does not
connote, as it were, the NCA keeping unto itself
the entitlement to rely upon the referring out when
it is back to itself through a seconded policeman.

If the NCA has acted beyond power - that is

why I said before lunch that at that stage the

Full Court, having correctly found, as

Mr Justice Foster did not, that there were such issues, it should have really then looked at what

happens if people do not call evidence and what

inferences ought to be drawn, instead of looking at
the criminal process and the significance of

Mr Coady's affidavit is that in Victoria, if an application is made in a criminal trial, it has to

be made to the trial judge of the criminal trial
and if there is to be an appeal against the judge's
finding as to abuse of power, one must wait until

the conclusion of the criminal trial. That is the

effect of those cases that Mr Coady referred to.

So that it is placing applicants, who have the

right to be heard and have their case determined on

questions of power, being forced into the criminal

procedure and not only being forced into it, being

forced to await the conclusion of the criminal

trial to have all of their rights taken advantage
of, whereas it could have gone on to determine this

on that simple basis.

At the end of the day, there has to be a

balance that is achieved between the right of the public to expect criminal process to take its due

course but, here, where it has not commenced and
where the parties have litigated those matters that
can be determined on their merits before any

charges have in fact been laid against any of the

Elliott 58 20/12/93

applicants - and one weighs those in the balance

against the effect that is set out in the affidavit

material to which Your Honour has been taken - it

is clear, in my submission, that the court was

fundamentally wrong in the way that it viewed what

ought to have occurred and the point that is raised

as to Jones v Dunkel makes this an exceptional case

in that instance, of where the NCA and the OPP were

put on clear notice as to the applicants' case and

it was a matter that is really a choice of theirs

as to how it has unfolded but, unfortunately, the

Full Court was then in a position where it was left

with little evidence upon which it could grasp

other than that which is available to the

applicants which was all one way and for the Court

now to view this as a case that is not exceptional

leaves the applicants in that position where,

through no fault of theirs - - -

HER HONOUR:  What makes it exceptional? Assume for the

moment that there was no reference covering the

foreign exchange matters. What is it that then

makes it exceptional?

MR LALLY:	Because these applicants would be charged in respect of the foreign exchange matter.
HER HONOUR:	Why would that be exceptional?
MR LALLY:	Because you have the NCA acting under the powers

of its Act, using coercive powers, and the
applicants would be forced into a criminal process

when the circumstances surrounding the exercise of

the power could, and should have been ventilated

before - - -

HER HONOUR:	But let us assume that it had a reference in respect of A and in the process it stumbled onto
evidence in respect of B. What is it that would
make prosecution for offence B exceptional?

MR LALLY: There should be no prosecution of offence B if

there has been exercise of any powers in respect of

B. That evidence, if there were there, it should

have been referred out immediately under

section 12. ·

HER HONOUR:  If that is the situation, you are complaint is

that Mr Seymour is laying the charge, not the DPP?

MR LALLY:  The difficulty is that the applicants are people

who attended those hearings and have subjected

themselves to the coercive powers, but the

respondents do not say to the Court as to what it

is that they have done, all there is is the threat

to charge and it is not as though the respondents

are saying they propose to proceed on one basis

Elliott 20/12/93

that they considered was justified and, arguably,
there is some further evidence or some other

matters that they would want to rely upon. They

choose not to put any of the evidence before the

Court. That is the difficulty. To answer

Your Honour's - - -

HER HONOUR:  I do not think it really advances anything to

say that is the difficulty, nobody gave evidence,

so we do not know what we are - throw up our hands

in horror and say let the High Court sort it out.

I do not think that advances anyone's position

really, does it?

MR LALLY:  The inferences ought to have been drawn in favour

of the applicants.

HER HONOUR:  The inference ought to have been drawn, why?

Why should one go beyond the question whether there

was an arguable case?

MR LALLY:  Because that makes it the arguable case. there was only the evidence of the applicants and
no relevant evidence is put in on behalf of the If

respondents, the court should not have looked ahead

to seek - so what would happen at an eventual

criminal trial, because -

HER HONOUR:  But why is that not a question that is relevant

to whether or not there is an exceptional case? If

you were satisfied, for example, that matters would

be properly ventilated in the course of a criminal

trial, and that there was no prejudice that would

not be attended to in a criminal trial, why would

you say it is exceptional?

MR LALLY:  Because the requirements that Your Honour has

just articulated did not exist. The court assumed

that the rights of the applicants would be fully

protected in a criminal trial, and for the reasons

that have been put forward in Mr Coady's affidavit,

those rights would not be adequately protected.

There is not the same protection as is available if

it had been dealt with - - -

HER HONOUR: That is the same in every criminal trial,

virtually, is it not? That is the position in

every criminal trial.

MR LALLY: 

But before one gets to a criminal trial, there

could, and should have been in this case, a
determination of those matters that related to the
exercise of power by the NCA under its legislation.

The quantum leap that was made by the Full Court

was really, instead of looking at that aspect of

the case, what should have happened when that

evidence was put forward on behalf of the

Elliott 60 20/12/93

applicant, what the Full Court did was to look, not

simply at the determination of the applicants'

case, but what would happen in the event that the
applicants were charged, and that is denying to the
applicants the effect of, really, success in their

case.

HER HONOUR:  It depends whether it is a case that warrants a

remedy. It eventually comes down to that, does it

not?

MR LALLY:  Yes, and the Court is deprived of being able to

determine that question because of the choice made

not to put in evidence by the respondents.

HER HONOUR:  The courts do not necessarily have coercive

powers even if the National Crime Authority does.

But, what is the status of evidence received under

the coercive powers of the National Crime

Authority? Is it privileged in any respect or is

it rendered it inadmissible in any respect?

MR LALLY:  No, it is confidential as between the parties and

is to be no disclosure of the fact that the persons

who have answered questions have attended there,

and it is to be kept entirely secret.

HER HONOUR: Is it admissible?

MR LALLY: Is it admissible in what respect?

HER HONOUR: In a subsequent prosecution.

MR LALLY:  If it is relied upon there may be arguments as to admissibility, but one does not know. What is

known is that the parties have attended and given

answers to questions that have been taken, and

documentation has been produced.

It is only really in Australia there is the

ASC and the National Crime Authority that would

have the sort of coercive powers that affect the

rights of people who appear before them that are so

much greater than if there was an investigation

normally by the police. If there cannot be a

determination of what occurs in the exercise of
those powers and it is left to be dealt with as a

subsidiary item in a criminal trial, the law is

really denying full and effective relief to people

who attend in answer to summonses to attend the
hearings under those types of legislation that have
the coercive powers within.

I accept that, as Your Honour says, it is not for courts to coerce parties before them to have to

put in evidence, but if the court wishes to

determine the matter on its merits by looking ahead

Elliott 61 20/12/93

as to finality, the failure to put before the court

evidence that is otherwise relevant, should in an

appropriate circumstance, form the basis of making

a case exceptional that it would otherwise not be

because it is material that is held by that one

party and although the applicants must make out
their case the determination of that case on its

merits can be made if one were to apply the rules

in Jones v Dunkel in an appropriate way. It was

this type of case where there was the failure to

put the evidence that raised it squarely that would

have avoided the consequences that have now

followed. Other than that, the applicants will be

deprived of any effective chance of having those

aspects that affect their liberty at this point of

time determined on their merits.

HER HONOUR:  Yes, can I take you back, because I really do

not understand what it is that you say makes the

case exceptional? Is it the absence of a

reference?

MR LALLY:  The commencing point is the source of power for

the exercise of the conduct of the hearings before there is any reference - I am sorry - before there

is any evidence that is taken, there has to be a

reference authorizing the investigation.

HER HONOUR:  Now, you do not assert mala £ides, as does

Mr Sher?

MR LALLY: 

The applicants for whom I appear were not involved in the ulterior purposes part of the case.

HER HONOUR: 

You say what makes this exceptional is that

there was an absence of a reference into the
foreign exchange matter. Am I correct in assuming

that you would say it was exceptional even if that

evidence was stumbled across, as it were, in the

course of investigating a genuine reference and an

unquestioned reference? 

MR LALLY: 

If it were stumbled across, it ought not to have been dealt with without obtaining a reference. It

should have been -

HER HONOUR: 

What provision of the Act do you rely on?

MR LALLY: Section 12 would dictate that any such evidence

that was stumbled - - -

HER HONOUR:  I must say, I do not read it that way.

MR LALLY: Section 12 provides that:

Where, in carrying out an investigation

under paragraph ll(l)(b) or 11(2), the

Elliott 62 20/12/93

Authority 8btains 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, the Authority must assemble the

evidence and give it to -

and then one of the law enforcement agencies. So

that they are to be an investigating authority and

they have to be carrying out an investigation - - -

HER HONOUR: Let us assume they are investigating the Harlin

matter, but in the course of investigating Harlin

they have come across the foreign exchange matter.

Does that not come within 12(1)?

MR LALLY:  No. To then investigate the foreign exchange

matter they need a reference.

HER HONOUR:  No, there is no suggestion that they are

investigating it at this point.	The suggestion
is - I am really asking you a question of law.	I
am trying to identify what it is about your case that you say makes it exceptional.

MR LALLY: That the applicants have been involved by having

attended at the hearings where it would seem that
there was no reference that would cover the

matters - - -

HER HONOUR: All of that is done and past.

MR LALLY:  It is done and past but their attendance and

information that is being obtained under the
references must dictate whether there was power

existing in the NCA to use the information that

came from those hearings.

HER HONOUR:  Why?

MR LALLY:  Because the authority has no power -

HER HONOUR:  I mean, first of all, I have asked already, but

I do not understand that the NCA is actually going to use the information that came from your clients.

Is it admissible evidence against them in a prosecution?

MR LALLY:  If it was put forward it would be admissible

evidence against us, but they have not put forward

as to what is to be -

HER HONOUR:  Is there anything in the Act that says that a

statement is or is not admissible?

MR SHER:  Yes there is.

Elliott 63 20/12/93

HER HONOUR:  Yes.

MR SHER: Unless objection is taken on the grounds of self-

incrimination.

MR LALLY: With respect, it is not a matter of simply going

to 12 and then justifying the investigation of one

matter come across incidentally. There would have

to have been authorization in this Act for them to

do so, and there would have had to have been a

reference for that purpose. So, in Your Honour's

example you are saying, "Well assume that there was

one reference and come across a matter that is

relating to another aspect altogether" there would

have to be a separate reference for that matter.

HER HONOUR:  A separate reference before what?

MR LALLY: Investigating it.

HER HONOUR:  Yes, well we are not concerned with

investigation at this stage of the proceedings; we

are concerned with what now happens, and we do not

know that there was a specific investigation of

this.

MR LALLY:  But what we do know is that there is a threat to

charge in respect of foreign exchange matters, and

we do know that applicants have attended at

hearings, and what we do know is that on the
evidence that is put forward by the applicants

there would seem to have been no authorization for

investigation of the foreign exchange matters.	And
that if there has, therefore, been - - -

HER HONOUR:  But you accept that there was a reference of

some matter?

MR LALLY:	Yes, there is a reference of some matter.
HER HONOUR:

Which involves some of the applicants at least.

It involves Elders, some of the applicants, and all

of the applicants were at the relevant time

officers of Elders.

MR LALLY:  Yes. But this Act does not give power of what

might be called an incidental power.

HER HONOUR:  You say it really boils down to: the fact that

there was no reference is what makes it

exceptional. You say it defeats the whole process.

MR LALLY: It involves the conduct of statutory authorities

such as the National Crime Authority with such

extensive power of where the people in the position

of applicants for whom I appear can then find

Elliott 64 20/12/93

themselves thrown into the criminal process without

having a medium for determination of those issues.

HER HONOUR:	The issue is - tell me again what the issues are because I really am having great difficulty
understanding your case, Mr Lally.  The issue is
first whether there was a reference.
MR LALLY:	Yes.

HER HONOUR: Secondly, if there was no reference, whether on

that account, simply because there was no

reference, the case should be treated as

exceptional in the sense of the Horseferry Road

Magistrates' case.

MR LALLY:  Yes. What the Full Court ought to have done was

determined it on its merits rather than looking

ahead.

HER HONOUR:  But what I am suggesting to you is: if all

that your case is is that this precise matter was

not the subject of a reference - and this very much

seems to me to be the way you are putting your

case - then I would have thought it needed a very

great leap to say it comes within any principle

that would explain the Horseferry Road Magistrates'

decision.

MR LALLY:  The Court has to balance between allowing a

criminal prosecution to proceed where the rights of individuals are affected and determining whether or

not there has been an abuse of power.

HER HONOUR:	Why can that not be
MR LALLY:	It cannot now be done once they are at the stage of being about to be charged.
HER HONOUR:	The difficulty is your middle proposition that

the courts have to balance. That is the point at

which I do not understand you to have put anything
to me in favour of that proposition.	The courts
have to balance.	Why?

MR LALLY:  The courts have to balance - - -

HER HONOUR:  But why? It is not clear to me how you even

get into court on your argument; how you get your

foot in the door.

MR LALLY:  The courts have to balance between people who are

about to be charged and the criminal process

commencing.

HER HONOUR:  But the courts have never done that except

perhaps in the Horseferry Road Magistrates' case.

Elliott 65 20/12/93

MR LALLY:	Because if there has been - if this prosecution has, as it would seem, its starting point in the
NCA conducting hearings, taking evidence under its compulsive powers, they should not have been able to use that information, and because they do not
put - - -
HER HONOUR:	It is not clear that they have used that

information and you, it seems, do not seek relief

with respect to the information, although I think

Mr Sher's clients seek relief, but yours do not -

you told me that all of this happened at a time

when you were not there and you do not -

MR LALLY:  No, I seek- the relief that they not charge. The

same relief is sought -

HER HONOUR:  Yes, but what about relief with respect to the

information?

MR LALLY: It is paragraph 2 of the summons.

HER HONOUR:	You said you do not know anything about that.
MR LALLY:	No, what I do not know from firsthand experience

was what occurred when Mr Finkelstein attended at

the initial hearing. As I understand it, it is

that a statement was made to the court that if

there was to be prevention of the information

obtained - - -

MR SHER:  I have got the transcript of exactly what he said

here.

MR LALLY:  If there was to be a point taken, there would be

no difficulty in having another policeman instead

of Mr Seymour. I seek the same protection but I

was not able to tell the Court precisely, but over

lunch-time the relevant transcript has been

obtained and Mr Sher was proposing to take that to

Your Honour.

sought by my clients in respect of not being But the same relief is certainly

charged. There is no difference in the cases in

that instance.

It was only as to what had originally occurred

before Mr Justice Olney that I was not able to help

Your Honour, but if, as the applicant put it, there

has been the use of this material, then there would

be an abuse of power because the NCA has acted

under the Act without the authority to use that

material. That is where my clients would be

adversely affected and then be involved in the

legal proceedings that would follow. If the Court

were to deal with it in the way that the Full Court
has of leaving it to the criminal trial, then

unfortunately the rights are not - - -

Elliott 66 20/12/93

HER HONOUR:  Do I take it then that you do not accept

Mr Sher's starting point that it has to be an exceptional case?

MR LALLY:	Yes, I do.
HER HONOUR:	You do accept that?
MR LALLY:	I do accept it has to be an exceptional case, and what made this case exceptional is that you have
the authority with its powers, the same as the ASC, of where people attend such as my clients; you have the exercise of those powers, and then you have
those authorities when it comes to court not put in relevant evidence as to what is going to be
involved in these charges.  So that the Court is
unable to grapple with what is the relevant
information that forms the basis of these charges,
so that the rights of those persons who are about
to be charged can be protected. That is why my
clients are put in that position of where they must come to the Court saying what has occurred to that point of time.

The respondents do not identify the precise

material or any of the material upon which the

charges are put, and so the Court is put in that

impossible position of looking ahead as to what

might happen at a criminal trial. We can show on

the evidence that the rights of those affected are

not going to be protected, and in those

circumstances the Court should put the applicants

in a position of where their rights of law are

protected. The rule of law has to in this

circumstance give way to the otherwise interest of

the community of having the criminal process start.

If Your Honour pleases, they are the submissions I

wish to make on behalf of those applicants.

HER HONOUR:  Thank you.

MR SHER:  Could I just assist Your Honour on this matter.

If I could hand to Your Honour a copy of the

transcript of the occasion on which Mr Finkelstein

appeared. If Your Honour pleases, what happened

was - Your Honour will see from the transcript that

it is of 27 September. That was the day on which

Mr Elliott and Mr Jarrett were to be interviewed by

Mr Seymour and, if they were not going to answer

his questions, were going to be charged. At

8 o'clock that morning an ex parte injunction was

sought and was served and at - it is not recorded

in the transcript - about 4 o'clock in the

afternoon Mr Finkelstein and Mr Walters appeared to

seek to have the ex parte order discharged.

Mr Finkelstein said three things of importance.

Can I take Your Honour to page 5. At this stage

Elliott 67 20/12/93

the proceedings were in camera.	Your Honour will
see at line 7 he said:

Now there are a number of points that we want

to make about the application. In the first

place - Mr Finkelstein then talked about it probably being

without precedent to stop a police officer from

laying charges, and he said at line 13:

The affidavit material that we have, and we do

not know whether your Honour was told anything

on this topic from the bar table, but the

affidavit material tells your Honour nothing

whatsoever about the facts giving rise to the
charges which the police officer intends to

lay, except four lines in paragraph 7 of the

affidavit.

Down to line 23:

In circumstances where your Honour knows nothing about the facts, nothing about the

true nature of the charges, nothing about the

likely guilt or innocence of the applicant, in

circumstances where a police officer wants to

lay charges in respect of offences which are

suspected to have been committed, but

your Honour knows nothing about them at all,

it is an extraordinary interference in the criminal justice system to enjoin a police

officer from proceeding in the way that this

police officer intends to proceed.

Down to line 38:

I could understand but would not necessarily

accept the court's power to intervene, if a

person could come along to the court and

articulate a set of facts which would make it

may well be charged has absolutely nothing to clear beyond peradventure that the person who do with the events concerned.

He then went on to ask the court to make an

assumption that the person may be guilty, and he

said this at line 6:

In any of those circumstances this court could never intervene, not ever, yet the material

tells you nothing at all about any of those

circumstances. Your Honour cannot judge at

all whether or not the person is guilty, may

be guilty or whether there are sufficient

facts to go to a jury for a jury to decide

Elliott 68 20/12/93

whether or not the person is guilty of

offences which may be laid against him.

So the first point we make is that Mr Finkelstein

was emphasizing the lack of evidence about the charge itself and the question of innocence or

guilt obviously as a relevant consideration. At

page 7 he made a second point and it was this,

coupled with something he said at page 9, that led

to the second injunction.	At line 20
Mr Finkelstein said:

They will be arrested, subject to the court

preventing arrest taking place.	I am sorry,
arrest - they will be charged.

He then went on to predict what would happen in

relation to it, which would be that they would have

conditions imposed, they would have their passports

surrendered:

another condition that will be imposed is no

leaving the country without leave of the

court.

At the top of page 8 he said:

Mr Sherman understands and the Authority

understands that neither has power to lay

charges either under the Commonwealth but more

relevantly state laws. Although the

proceeding does not say so, and that is, I

assume, because no formal application is yet

taken out, I assume that your Honour exercised

jurisdiction in this matter under the

cross-vesting laws. I do not know whether

your Honour did or did not, but

Sergeant Seymour, who will charge unless

your Honour enjoins him from charging, does in

charging, act under Victorian laws, and will

charge in respect of offences against the laws

of Victoria so that to the extent that you

exercise jurisdiction over him - I am not sure

precisely what the cause of action but it may

be a tort or something like that.

And then, having said quite unequivocally that

charges would be laid, Mr Finkelstein in the middle
of the page then started to talk in terms of what

the existing injunction actually prevented. He

said that the State Director of Public Prosecutions

had been involved in these matters, and at the

bottom of the page said he had been involved:

for many many months - 18 - yes, I understand

about a year and a half.

Elliott 69 20/12/93

As it turns out; Your Honour, it was over two

years.

There is of course, another issue in that

regard - well, it may be that if for one
reason or another your Honour thinks that

Mr Seymour should not give further

consideration to the laying of charges against

either applicant, that the Director of Public

police officer in Victoria to consider whether

Prosecutions, Victoria, or the National Crime

or not charges should be laid. Now we would

not think there is anything in the way that

your Honour has presently deal with the

matter, and the orders that have been made,

that prevent steps being taken to have another

police officer look at the issues.

If your Honour 1 s order is to be read in that

way, and if your Honour thinks that the order

should still go, we would ask for your Honour

to make it clear that it does not prevent

another police officer considering whether or

not charges should be laid of the type

described in the four lines in the affidavit

that I have referred to, against either

applicant, that is to say, we do regard it as
extraordinary that the criminal process should

come to an end in this way, whether it is for

a longish period or for a shortish period, and

we think that if orders should go against

Seymour, then it should be understood that

other people in the same position are entitled

to look at the material to see if charges

should be laid.

It was on the strength of that, Your Honour, that

we then sought and obtained from the court a

further injunction which is the alternative or the

additional -

HER HONOUR:	And what is the legal basis for that?
MR SHER:	The legal basis for that, Your Honour, is that the

material upon which those charges would be laid is

tainted, that is to say that it is illegally

obtained evidence obtained as a persistent course
of conduct in abuse of power; that it is not merely
a question of the references not encompassing the
foreign exchange matter, but that they know they do

not. The reason the OPP is involved is because under the DPP 1 s own Act, section 13 prevents the

OPP from using the NCA as an investigative tool.

Section 13 of the Victorian Act requires the OPP to use the police whose powers are considerably

different and less than those of the NCA.

Elliott 70 20/12/93

So the case we sought to make was that the

NCA, with knowledge that it did not have the power

to make an investigation, and despite having had

the matter drawn to their attention, persisted in

investigating the matter and the DPP acquiesced in

it because it provided him with an investigative

tool that he did not otherwise have.

It is not merely a question of illegality. If

I could just answer a couple of the questions put

to Mr Lally. This evidence would, in our

submission, fall into the class of evidence which

clearly would be subject to a ruling in the

exercise of the Court's discretion to exclude it as

illegally obtained evidence, but in light of this

Court's decision in cases such as Foster and

Pollard, some recent decisions in this Court, as to

how the discretion ought to be exercised - and I

will give Your Honour the references to those - our

contention would be the discretion would almost

certainly be exercised to exclude it.

So, there being no other material other than

that the NCA was proposing through Seymour to

charge and the DPP with knowledge of where the

material came from, there being no evidence of any other material, it was clear that the charges were

predicated upon an illegal investigation which had

produced a bulk of material. Seymour was cross-

examined as to where the material came from that he

was going to lay his charges under and he said it
went back to 1990 and comprised boxes of documents and transcripts of witnesses' evidence and I think

up to 80 witness statements. The irresistible

inference was that it all came through the NCA's

activities under the references.

What is exceptional about this case,

Your Honour, if I can answer that question, is not

merely that this is illegally obtained

evidence - - -

HER HONOUR:  Your case is different from Mr Lally's. You

see, I understand what you say; it is Mr Lally's

case that concerns me.

MR SHER:  Can I say something then for Mr Jarrett who is not

in the same position as Mr Elliott.

HER HONOUR:	Does he not make the mala fides complaint?
MR SHER:	Not against him personally, but he does allege

that he is, as it were, the innocent victim of the

mala fides made against Mr Elliott. That is how it

is put, Your Honour.

HER HONOUR:  I see, yes, thank you.

Elliott 71 20/12/93

MR SHER:  "Transferred malice" I think would be the way to

describe it if one was looking for a phrase.

HER HONOUR: 

I take it then what you say is that, given the

case you put, the material is almost certainly
inadmissible?

MR SHER: 

Yes.

HER HONOUR: 

And therefore there is an implied prohibition

under section 12 on the NCA's giving it to anyone.

MR SHER: Yes, that is exactly it, Your Honour. That is how

we put it. There is lots more I would like to say,

but I do not want to take too much advantage of the

opportunity.

HER HONOUR:  Do you have anything on transferred malice to

which I should direct my mind?

MR SHER: It is a long while since I did a lot of criminal

work, but I can remember as a young barrister

dealing with the cases when you were dealing with

people acting in concert, and the classic cases

that we are taught in law school about - in fact I

actually defended a person charged with murder who

was supposed to be shooting A and actually shot B.

There are many cases in which malice aforethought

of an accused to do injury to one affecting another

totally innocent person has been sufficient malice

for the purposes of the criminal law. Of course,

Mr Judd reminds me if the exercise of power is for

an improper purpose, then the whole matter suffers

from that corrupting influence.

There was one other question Your Honour asked

that was not squarely answered. Section 30 of the

Act which deals with the powers to hold a hearing

provides that:

A person ..... shall not, without reasonable

excuse -

in subsection (2), answer questions on a hearing

conducted. These hearings can only be conducted in

respect of a special investigation, and a special

investigation relates only to a referred matter.

So when Mr Lally said that you cannot investigate a

matter not referred, you cannot hold a hearing and

compel attendance and production of documents

unless you have a reference. In that way, if they

have conducted hearings - - -

HER HONOUR:  I am having difficulty finding out what happens

at the end of the day, but do I take it that there

is a voluntariness question as to the admissibility

Elliott 72 20/12/93

of anything that might have been said by any of

these applicants in the hearing?

MR SHER:	Not in the normal sense, Your Honour.
HER HONOUR:	Assume no privilege has been claimed for the

moment.

MR SHER: It has not been.

HER HONOUR: It has not been?

MR SHER:  No. You can claim privilege against

self-incrimination. What happened here, according

to the evidence before the court, was that

Mr Elliott was summoned to appear on a matter and

gave evidence and was asked questions about the

foreign exchange matter without notice, as it were.

This was in January 1991. The only occasion on

which he was summoned to attend in relation to the

foreign exchange matter was to produce some

documents, and he had no documents and he was asked
one question, and the transcript was put in

evidence. He was asked if he had any documents; he

said no. That is the sole questioning on notice to

Mr Elliott concerning the foreign exchange matter,

if it took place. It has been put against him that

he has answered these questions on the January

occasion and questions of laches, acquiescence,

estoppel, delay were all raised by our learned

friends.

But our argument in relation to that which the

Full Court appeared to be sympathetic to but did not resolve one way or the other is that they are

matters for final relief. You cannot evaluate

equitable bars to relief at an interlocutory level

because you have not got the whole story and you

cannot compare the behaviour of each of the parties

to ask whether the equitable bars should be relied

on.	I think that answers Your Honour's question
about the - the voluntariness was raised in
relation to the threatened interview.	The

evidence of the applicants was that they were told,

»If you don't come to this interview and answer

questions, you'll be charged.»

HER HONOUR:  That was not a compulsory matter.

MR SHER:  No. So they were in the dilemma - Mr Elliott said

I was in the dilemma, if I did not answer

questions, I would be charged, which would have

serious adverse effects upon my negotiations about

the wool; if I did answer questions, then he did

not know what was to become of him.	If Your Honour
pleases.

Elliott	73	20/12/93
HER HONOUR:	Yes, thank you.	Yes, Dr Jessup.

MR JESSUP: If Your Honour please. It might be convenient

if I were to mention, whilst it is fresh in

Your Honour's mind, one of the matters to which my learned friend, Mr Sher, has just referred, namely

that a question of the admissibility of the

evidence collected under references which, for the

sake of his argument, did not cover the subject-

matter being investigated, would arise and

therefore that that evidence would almost certainly

be excluded and therefore it would not be capable

of being dealt with under section 12. Your Honour,

it was never put that way; never once put that way.

The law is, Your Honour, that that is an

entirely red herring. The evidence would not be

rendered inadmissible by having been unlawfully

collected. Bunning v Cross, (1978) 141 CLR 54,

McPherson v Reg, (1981) 147 CLR 512 at 519 to 520.

HER HONOUR:  It depends on what admissible means. The

question is not whether it is inadmissible; the

question is whether it is admissible and its

meaning in section 12.

MR JESSUP:  Your Honour, the question is whether it is

admissible. Evidence which is otherwise relevant

and not inadmissible for some other reason is

admissible under the authorities to which I have

referred, notwithstanding that it has been

unlawfully collected, such as for instance by the

placing of wire taps or something, without

appropriate warrant. That evidence can be excluded

in the discretion of the trial court, the burden of

procuring that exclusion lying on the accused

person or the person against whom the evidence is

to be used.

Now, Your Honour, the way in which it was put

from the outset by the applicants was that

Mr Seymour ought to bring a policeman's independent

mind to the question whether someone ought to be

charged. He ought to consider all so-called

relevant factors, including whether the evidence

which he had before him would in fact be admitted -

not simply whether it was admissible or not, but

whether it would, in fact, be admitted. And it was

put that he either did not consider that or was

working upon a misapprehension in his assumption

that it had been lawfully collected, with the

result that his discretion in the matter of laying

charges miscarried. That was the way it was

originally put.

My learned friends now say, and they said in

their written submission to the Full Court, that

Elliott 74 20/12/93

that was not the principal way in which they said
there was a legally relevant conclusion to the

allegations which they made as to the lawfulness of

the inquiry. Your Honour, the principal - indeed,

the only way in which the applicants gave a legally

significant or sensible link between their

allegations about lack of authority and the end

result which they sought to achieve was by saying

that the evidence would almost certainly not be

admitted. The pages upon which they said that,

Your Honour, were contained in our written

submission to the Full Court. Your Honour does not

have them at the moment, but they are pages 50, 63,

71 to 72, 243 and 777 to 779. They have put it in

opening, they put it whenever they got a chance to

put it, and they put it in their closing address.

Your Honour, our response to that was that

these are matters which the trial court, and the

trial court alone, can rule on. Even if the

Federal Court were to attempt to take on board the question of whether the evidence would be admitted

or not, that would not be binding on the trial

court. The only thing that could possibly achieve

would be to embarrass the trial court. There are

cases which go to that as well, Your Honour, to

which we referred Mr Justice Foster, and quite
frankly, until now we had not thought that there
was much controversy about that. That is to say,

one court cannot, in a collateral proceeding, bind

a second court as to the evidence which it will or

will not admit. The authority for that is Rank

Film Distributors v Video Information Centre,

(1982) AC 380 at 442 and 446. That, Your Honour,

was referred to by Mr Justice Foster in his

judgment.

Now, Your Honour, if we may go back to deal

with some more general propositions. Your Honour
has been referred to the Burgundy Royale case and you will be familiar with that test. Now, if one

turns to the question of whether there is a

substantial prospect that special leave will be

granted in this case, the first thing about it to

note is that this will, in any event, be concluded

by the Court to be yet another attempt to appeal

from the exercise of a discretion in a matter of

practice and procedure, and Your Honour is familiar

with Adam P. Brown and the cases of that line.

Now, it has been held, Your Honour, on a

number of occasions, that it would be a very

unusual case where special leave is given against a

refusal of a Full Court to grant leave to appeal

from the refusal of an application for an

interlocutory injunction. May we refer Your Honour

to Paringa Mining v North Flinders Mines, (1988)

Elliott 75 20/12/93

165 CLR 452.	We might just hand Your Honour a copy
of that.

HER HONOUR: There was relief there, was there not?

MR JESSUP:  You granted it, yes. Your Honour participated

in that and relief was granted but it was granted

because the South Australian Full Court had refused

to convene itself or been unable to convene itself

in order to consider the matter within the court of

trial. It was a very unusual case for that reason,

Your Honour. Your Honour, may we take you to

page 457 where the Court said, at about point 4:

In the ordinary case, it would be most

inappropriate for this Court to entertain an
appeal from the refusal of an interlocutory
injunction by a court of trial. Several
considerations make it inappropriate. In the

first place, such an appeal would produce a confusing division of judicial control over

the proceedings. Next, the questions whether
there is a serious issue to be tried, where

the balance of convenience lies and what

should be done to preserve the status quo

could seldom give rise to a point of principle

which would warrant the intervention of this

Court.

And then the Court says something about

acquisitions of shares, and then in the next

sentence:

And, where an interlocutory order does not

determine the rights of the parties, the order

would usually be an exercise of discretion on

a point of practice or procedure.

And the Court refers to Adam P. Brown and the Will of Gilbert, and over the page at the start of the

next paragraph, Your Honour:  In general, the orderly administration of

justice would be impeded if this Court

intervened in interlocutory proceedings in a
matter pending in a court of trial. It is the

responsibility of a court of trial to

determine the course of interlocutory

proceedings, subject to appeal to the relevant

intermediate appellate court.

Of course, in that case, Your Honour, it was that

intermediate appeal which, for administrative

reasons or the like, was unavailable.

May we take Your Honour also to Cohen v

Peko-Wallsend, (1986) 61 ALJR 57. This was similar

Elliott 76 20/12/93

to the present case, Your Honour, except that in
this case an interlocutory injunction had been

granted by the Federal Court judge, at first

instance, and leave to appeal from that had been

refused by the Full Court. It was an injunction

operative upon the then Minister for the

Environment to restrain the minister from making

application to list part of Kakadu National Park as

a world heritage area.

Could I take Your Honour to page 59, in the

first column just above the letter F.	The Court
said:

It is rare indeed for this Court to grant

special leave to appeal from an order
dismissing an application for leave to appeal

from an interlocutory order.

Finally, Your Honour, Contender 1 Ltd v LEP

Ltd, (1988) 63 ALJR 26. This was perhaps,

Your Honour, more classically a case of practice

and procedure in that it concerned service of

process outside the jurisdiction, but there is a

statement to which we would refer Your Honour. At

page 28 at the top of the second column, the Court

said:

Returning to the statement made by the

Court of Appeal when refusing leave, we do not

believe that this Court should be zealous to

discern a failure on the part of that Court to

fulfill its duty.	The task confronting an
applicant for leave is well known.	Both

parties were represented by counsel and a

statement of the reasons why leave should be

given had been filed. It is inconceivable

that in those circumstances the Court was not
fully apprised of all the material

considerations.

Now, in the present case, Your Honour, it has

not been said that the Full Court applied the wrong

test on considering whether there should be leave

to appeal from Mr Justice Foster. Indeed, the test

which the Full Court applied was the qualified one

which it was invited to apply by the applicants

themselves. And that appears at pages 6 to 8 of

the joint judgment.

Your Honour, on page 20 of the joint judgment,

Their Honours posed a critical question. In our

submission, that critical question was a fair

reflection of the way in which the matter had been
dealt with before His Honour below and the way in

which the matter was argued in the Full Court and,

Elliott 77 20/12/93

indeed, it is the critical question which arises in
this matter, however one attempts to embellish it.

Both before His Honour, we submit, and also before the Full Court, the question really was

whether, arguable case or not, the circumstances
were sufficiently exceptional, sufficiently strong,

sufficiently unusual, to justify an interference in

the criminal justice system against the undoubted

fact that the criminal trial court would have

jurisdiction to protect the applicants against any

abuse of process, and would be the only court with

power to rule that any particular evidence should

be admitted or rejected. Does Your Honour see that

on page 20, .about a third of the way down?

HER HONOUR:	Yes.
MR JESSUP:	"The critical question before the primary

Judge". Now, the primary judge held, Your Honour,

that this consideration of not interfering in the

criminal justice system was sufficiently powerful

to induce him, as a matter of discretion, not to

grant an injunction, regardless of the balance of

convenience. There were a couple of respects in

which, as we would read his judgment, he held that

there might be arguable things in favour of the

applicant. The Full Court went further. The

Full Court on that page identified two matters with respect to which it was prepared to accept that a serious issue arose.

So, what it comes down to, the reason why the applicants did not get their injunction,

Your Honour, was that the Full Court in the

exercise of its discretion took the view that they

ought not have an injunction, and that is,

pre-eminently, Your Honour, the very kind of case

which will not attract the special leave of this

Court on an application.

Now, Your Honour, the two matters with respect

to which the Full Court was prepared to grant a

serious issue have been mentioned to you today, and

we wish to say something shortly about each of

them. We do not wish to controvert the question

whether there is a serious issue or not, what are the consequences of there being a serious issue in each case.

The first one was the question whether the

foreign exchange matter came within the scope of
the references, and that raised a question of the

construction of the references. As Your Honour has

adverted to today, the references accompanied the

summonses to each of the applicants to give

Elliott 78 20/12/93

evidence themselves before the Authority in late

1990, and early 1991. Taking the applicants

Elliott and Jarrett, with respect to whom there is

detailed evidence, they were represented on each
occasion by practitioners of considerable

experience, as was pointed out by

Mr Justice Foster. They had before them the

references and they were asked questions about the

foreign exchange matter and, on one occasion, asked

to produce documents about it.

Your Honour, there is a facility under the

National Crime Authority Act for objections to be

taken to the scope and legality of the questions

being asked, or the documents being subpoenaed or

being summonsed. Proceedings were not taken,

Your Honour.	The Authority's acts in that regard
were not challenged.	Now, the Authority then

continued with its investigation over a period

which, as my friend has reminded you, was two and a

half, nearly three years, and the applicants have

waited until that process is complete as a matter

of investigation, and it is time to move, as it

were, to the next process, to say they want

injunctions without having to establish the
ultimate correctness of the propositions upon which
they seek those injunctions, but simply on the low
threshold of an arguable case, and then they say

the balance of convenience is all one way.

Now laches and delay, Your Honour, is not just

a matter which goes finally to equitable relief.

It is something which arises on every application

for an interlocutory injunction; indeed, we would

submit, probably more important on an interlocutory

application because of the low threshold of

persuasion in relation to factual and legal matters

which is required. Your Honour, the Chief Justice

mentioned this in Queensland v The Commonwealth,

(1988) 77 ALR 291, at page 298. We do not say that

His Honour was making any new law in saying this.

It is just an example of where delay has been held

to count against someone seeking an interlocutory

injunction. At the top of page 298 His Honour

said:

Another important factor which tells

against the plaintiffs is their delay in

making the application for interlocutory

relief.

And we would say it is just altogether too neat to
wait for that period of time and then say, "Oh

dear, we haven't got time to investigate this

fully. We want an injunction on an arguable case".

Elliott 79 20/12/93

So, quite apart from anything else,

Your Honour, we have always, as my friend said,

been particularly strong on that aspect, and

Mr Justice Foster was influenced by it.

Your Honour may remember reading in his judgment

that he described this part of the applicant's

argument as a highly elaborated afterthought, and

although he did not say that laches, as such, or

delay as such, was the bar to relief, none the less

he took it into account as a matter of discretion.

Now, the other matter to which the Full Court

referred as possibly giving rise to a serious issue

is the question of the relationship between the

Authority and the policeman, Seymour. Can a

policeman who is seconded to the Authority be the

same policeman to whom information is handed under

section 12, the device point and things of that

kind. The Full Court granted that as a possible

argument.

HER HONOUR: That is a fairly serious one though, is it not?

MR JESSUP: No, Your Honour, for this reason: in practical

terms it really does not lead anywhere for this

reason, that it only applies if the information is

going to be given to Mr Seymour.

HER HONOUR:  Yes, and if Mr Seymour is outside section 12

and the information is not given to him, if it is

arguable that it should not be given to him, then

one might think that he would be somewhat reluctant

to launch a prosecution without the evidence

available to him.

MR JESSUP:  He would be, yes, but my only point is,

Your Honour, that would be no basis for an

injunction as claimed in the second part of the

present summons.

HER HONOUR:

No, I see, or indeed for the first part. I

take it then that there has never been any claim

that the material should not be given to

Mr Seymour.

MR JESSUP: Well, it has been assumed that Mr Seymour has

the material, Your Honour, you see, because he had

formulated his tentative views about who might be

charged with what, and then he moved and gave an

interview. This is what the applicants describe as

a threat, quite wrongly, we would say, Your Honour,

in an affidavit which is, at best, tendentious, and

I will not say what it is at worst, but,

Your Honour, what happened was that Seymour took

the fruits of the investigation and he looked at it

and he rang up the solicitor to Mr Elliott and

Mr Jarrett and said, "Well, would your clients like

Elliott 80 20/12/93

to come in and have an interview?", and they said,

"What sort of an interview?", and he said, "A

police-cautioned interview".

So he had the material, Your Honour, and this

case is concerned with what use he can put it to.

Now, in any event, Your Honour, as we would submit,

that is something which the Full Court was prepared
to grant, and indeed, Mr Justice Foster did not

decide that point against the applicants. He, as

we would read his judgment, dealt with the matter

as a matter of discretion, but what we say in

addition to what has previously been said,

Your Honour, is that in any event it could at most

justify a restraint only with respect to Seymour

himself.

Your Honour, the hearing before

Mr Justice Foster occupied some sixteen days, and

the appeal occupied two days, with the result that

we have four members of the Federal Court, and they

have all concluded that the case is not exceptional

so as to justify, even on an interlocutory basis,

an interference in the administration of the

criminal justice system. Now, my friends have put

it as though the only question was whether the

Court would, at the end of the day in a final

hearing, interfere in the administration and all
they need to do is to raise a serious question, and
then one looks at the balance of convenience.

Your Honour, in our submission, that is to give too limited a role to the principle of

non-interference. Each interlocutory order which

has been made and e~tended in this case has, in

itself, effected a day-to-day interference in the

administration of the criminal justice system, and the reluctance of courts, particularly this Court, so to interfere, in our submission, runs to orders of all kinds, whether they be interlocutory or

permanent.

Now, Your Honour will be familiar with Yates v

Wilson. May we hand up a copy of Yates v Wilson.

This was an application for special leave to appeal

from the Federal Court. It was an AD(JR) type

action in the Federal Court with respect to

committal proceedings.	Mr Justice Foster was the
trial judge in that case also, Your Honour.	He
dismissed the application.	An appeal was
dismissed.	Now, even this case was a case of final

relief; it was not an interlocutory proceeding.

The Court said:

It would require an exceptional case to

warrant the grant of special leave to appeal

in relation to a review by the Federal Court

Elliott 81 20/12/93

of a magistrate's decision to commit a person for trial. The undesirability of fragmenting

the criminal process is so powerful a

consideration that it requires no elaboration

by us. It is a factor which should inhibit

the Federal Court from exercising jurisdiction

under the Administrative Decisions (Judicial

Review) Act 1977 (Cth) and as well inhibit

this Court from granting special leave to

appeal.

Your Honour, the other matter which, as far as we

have been able to find, has come to this Court, of

a similar kind, is Vereker v O'Donovan, which

appears to be reported only in 6 Legal Reporter,

although part of the judgment of the Court on the

special leave day was set out in the

Federal Court's judgment in Smiles' case, but not

all of it. May we draw Your Honour's attention to

what the Court said in refusing special leave to

appeal:

'It would require a most exceptional case for

this Court to grant special leave to appeal

from a decision of the Federal Court reviewing

a decision of a magistrate to continue

committal proceedings. The undesirability of

fragmenting the criminal process is so

powerful a consideration that it requires no

elaboration by us. Despite the arguments

advanced by Mr Hughes of Queen's Counsel, we

do not consider that the features of the

present case are such that the advantages of

intervention by this Court, at this early

stage of the proceedings, outweigh the
desirability of the matter proceeding in the

ordinary way.

'We would add that we are by no means

convinced that the Federal Court has the

the present case and we would emphasize what jurisdiction which it claimed to exercise in

the learned judges of the Federal Court have

already pointed out, that if that court has

the jurisdiction, it is a jurisdiction to be

exercised very sparingly and in most

exceptional cases only.'

Now, Your Honour, there were, of course,

jurisdictional arguments put here to

Mr Justice Foster. It was said that the AD(JR) Act did not apply because there simply was no

enactment. This was a decision to charge under

Victorian law. It was said that section 39B did

not apply because this was not an officer of the

Commonwealth. He was certainly paid as such, but

in his relevant decision-making capacity he was to

Elliott 82 20/12/93

be enjoined, if.at all, as a State policeman. It

was said that the cross-vesting jurisdiction did

not apply because this was a criminal matter which

comes within the exception in section 4(5) of the

Cross-Vesting Act, and we said that if there was

any other jurisdiction it would be most unlikely to

be exercised in the circumstances of all the

indications, keeping this kind of matter out of the

Federal Court. Now, Mr Justice Foster did not

decide those points, Your Honour, but he certainly

felt and said that they were powerful indications.

Now, turning to whether special leave is likely to be granted under the criteria in the

Judiciary Act, Your Honour, we would submit that

there is no question of law involved in this

matter; certainly not one of public importance.

There has been no final resolution by the

Federal Court of any question of law.	The case is
only at the interlocutory stage.	To the extent

that they did apply any law, Their Honours below
applied law which was uncontroversial and four

square within the judgments of this Court to which

we have referred.

So far as Bennett's case is concerned,

Your Honour, we would submit that this is not an

occasion upon which to consider the applicability

of Bennett's case in Australia, and we do that for

a number of reasons. Bennett's case did not

concern the laying of a charge, it concerned

custody; that is, whether the court would proceed

against a person who was in custody of the police

and had got there by unlawful means.

Secondly, Your Honour, Bennett's case was, if

I may say, a dry jurisdictional argument on assumed

facts. If Your Honour will look at page 94 of the

report, the question posed was - this was a

certificate, Your Honour, under section 1(2) of the

Ad.ministration of Justice Act 1960 by the

divisional court: 

that a point of law of general public

importance was involved, namely:

"Whether in the exercise of its supervisory

jurisdiction the court has power to inquire

into the circumstances by which a person has

been brought within the jurisdiction and if

so, what remedy is available if any to prevent

his trial where that person has been lawfully

arrested within the jurisdiction for a crime

committed within the jurisdiction."

Now, if this case went to the High Court,

Your Honour, it would not pose that question. So

Elliott 83 20/12/93

this is obviously not an occasion upon which the

principle in Bennett's case could be tested for its

applicability to Australia.

Next, Your Honour, Bennett's case was not a

collateral attempt to prevent any step being taken

in the criminal justice process. The magistrate

himself had this very submission made to him in the

committal proceedings and then, when he ruled

against it, the accused person sought an

adjournment to get judicial review of that refusal.

The adjournment was refused and there was then

judicial review proceedings in relation to the

refusal of the adjournment.

So, to the extent that we would say that a

court exercising criminal jurisdiction is the place

in which questions of stay and abuse of process and

so forth are to be agitated, Bennett's case is

quite consistent with that submission, in that you

go along first to where you are going to be tried;

you put your point of view there and if it is not

successful, then you can go to the court of

supervisory jurisdiction with respect to the

criminal court.

So, we would submit for that reason,

Your Honour, that there is no basis for

anticipating that this Court, on a special leave

day, would perceive this to be the appropriate

occasion to test the applicability of Bennett's

case in Australia. This is not a case,

Your Honour, where there are, at least in any

relevant respect, differences of opinion between

different courts. To the contrary, the Federal Court has been consistent in its application of

Yates v Wilson and Vereker v O'Donovan and nothing has been said by this Court to the contrary.

Finally, Your Honour, we would say that if you

put the applicant's hyperbole to one side, there is

no consideration in the administration of justice

which here militates towards the grant of special

leave. Indeed, we would submit that every day that
an injunction remains in place, the administration
of the criminal justice system is brought the more
into disrepute, for reasons which are heavily

implicit in those observations from the High Court

to which we have referred.

Now, the next criterion from Burgundy Royale

is the question whether an application was made to

the court below for the stay which is now sought of

Your Honour and, as my friend has said, an

application was made. May we hand up to

Your Honour a copy of the judgment which was given

by the court below in relation to that application

Elliott 84 20/12/93

on 15 December this year. I think my friend made

something to the fact that this was not a

considered application, or the authorities were not

available. It was my friend's - - -

MR SHER:	No, that is not what I said.
MR JESSUP:	I will content myself with stating the facts.

This was the applicant's application and
Their Honours left the bench and came back about

half an hour later and ruled on it, and they said

this:

The following are the reasons for the judgment

of the court with respect to applications by

the applicants for a stay of the court's

orders given earlier today. The court then

gave judgment on the motions of the applicants

for leave to appeal from the judgment of

Mr Justice Foster on 23 November.	The court
dismissed those motions with costs.	The

applicants now seek an order of the court

granting a stay of proceedings pending the

hearing of applications for special leave to

appeal to the High Court from our judgment,

and if special leave is granted, pending the

determination of the appeal. Counsel have

told us that they expect the applications for

special to appeal may be heard by the

High Court in February, providing the

necessary papers are filed in the High Court

Registry next week.

The relevant principles to be applied of

this kind are referred to in Jennings

Construction and also in Smith Kline. Those

principles are as follows: in exercising the
extraordinary jurisdiction to stay, the
following factors are material to the exercise

of the Court's discretion. First,

jurisdiction to grant a stay depends on

whether a stay is necessary in a case to

preserve the subject-matter of litigation. If

an application for special leave to appeal

would be futile unless a stay is granted, the

jurisdiction arises. A stay to preserve the

subject-matter of litigation pending an
application for special leave to appeal is an

extraordinary jurisdiction and exceptional

circumstances must be shown before its

exercise is warranted.

Secondly, it is relevant for the court to

whether a grant of stay will cause loss to the

consider whether there is a substantial

prospect that special leave will be granted.

Elliott 85 20/12/93

respondents. Fourthly, a relevant

consideration is where the balance of

convenience lies -

And, of course, in their Honours consideration, they did not list the fact of there having been an

application to the Federal Court because that is

where they were -

We have considered the submissions of counsel

in the light of these principles. In our

opinion, it is not appropriate for this court

to grant the stay sought by the applicants.

As we pointed out in our reasons for judgment delivered earlier today when dismissing the

motions for leave to appeal, the High Court on

several occasions has held that it is only in

exceptional circumstances that courts

exercising civil jurisdiction should interfere

with the institution and prosecution of

criminal proceedings. We therefore see no

substantial prospect that special leave to

appeal will be granted by the High Court.	We
would dismiss the motions for a stay of
proceedings.

Now, in our submission, Your Honour, the judgments in Burgundy Royale and in Smith Kline imply that the Federal Court should exercise the jurisdiction

in the first instance to decide whether there

should be an injunction, or stay, pending

application for special leave to appeal, and where

that has been done, as it has been in this case,

the Federal Court's judgement should itself be

treated with considerable respect, we submit, at

least as much as in the case of an appeal from a

matter of practice and procedure.

That is to say, Your Honour, it would be

unlikely for this Court to have urged upon

litigants, as it previously had, that they should

apply to the Federal Court for such a stay if this
Court were not, in effect, to defer to the judgment
of the Federal Court in that respect, unless there

were some very obvious reason why that should not

be done. Of course, Their Honours below had heard

the case, they had decided the appeal; they had

decided that there would not be leave to appeal

given themselves and, of course, Mr Justice Foster

went before them.

The next matter which is a criterion,

Your Honour, is the loss to the respondent, that is

to the interests we represent. "Loss" perhaps is

not the right word in a case such as this,

Your Honour, nor perhaps is the word "respondent",

save in so far as one may take the respondent as,

Elliott 86 20/12/93

in effect, the community as a whole, and its

interest in this litigation is expressed as a

matter of the public interest in the operation of

the criminal justice system. This is something

which has been recognized by the Court in the past

and very great weight should, in our submission, be

given to the fact that every day that the

injunction remains in place, what the Court has

said should happen only in an exceptional case is,

in fact, taking place on a continuing basis.

Finally, Your Honour, on the balance of

convenience, we say this, that this case has now

been considered twice in the Federal Court, that

is, at two levels in that court, over a period of

some 18 days hearing and, on each occasion, the

court has had no hesitation in concluding that the

balance of convenience favoured refusing an

application for interlocutory relief. As my friend

said in his case, "This is an application for an

interlocutory injunction pending the hearing of an
application for special leave to appeal from the

refusal of the Full Court to give leave to appeal

from the refusal of a judge to give an

interlocutory injunction."

So, in one sense, Your Honour, we have come

the full circle but, in traversing that circle,
four members of that court have held, without

hesitation, that the balance of convenience favours

not granting interlocutory relief and, on the

second of those two occasions, Your Honour, it was

even on the assumption that there were serious

issues to be tried in some limited respects. So,

in our submission, again, unless my friends can

show you that there has been some very serious

oversight by the court on the question of balance

of convenience, then you might consider yourself at

least, if I may say with respect, guided by the

views of the court below in this respect.

Your Honour, there is a number of matters

which were put by my friends today, to which we
wish to respond and we will try to do so as briefly

as we can. In our submission, the test to be

applied should be, as we have said, from Burgundy

Royale. If the Narain case puts it any differently

we would submit that that is not an appropriate

analogy for this case. The present case does not,

of course, involve the liberty of the subject.

Indeed, one of the oddities about these kinds of procedures is that the Federal Court is being put

in a position of, in a sense, having a quasi bail

type of hearing - you will remember what Mr Elliott

said in his affidavit, Your Honour.

Elliott 87 20/12/93

This is, in our submission, altogether the

wrong place for questions of whether people should

be at large or not to be agitated. This case

should really only involve what it does, namely

whether charges are going to be laid. If they are

laid there may be issues downstream which touch

upon the liberty of the subject but, as we would

have it, they ought to be dealt with in the courts

with jurisdiction to deal with them.

Now, my friend, Mr Sher, attempted to

categorize the, or to describe the ruling of the the facts can never give rise to exceptional

circumstances. He attempted to have the Full Court

as holding that unless you have got a neat

compartmentalized point, then you cannot have

exceptional circumstances.	Your Honour, the
Full Court did not say that.	They gave neat

compartmentalized points as an example of

circumstances in which it might be less

inconvenient for a different court to have a

collateral investigation of something within a

criminal justice prosecution.	But they were no
more than examples.

There can be no doubt, however, Your Honour,

that a case which does involve factual inquiry and factual controversy is the very kind of case which is pre-eminently not suitable as a vehicle for

collateral attack upon the criminal prosecution

sector.	He, of course, read that extract to you
from Dean's case in the UK.	My friend said that

this is not an attempt to fragment the criminal

justice system, it is rather an attempt to stop it

starting or to prevent it from getting underway.

In our submission, if he is seeking to say that the

principle is any different we would say that that

is mere pedantry.

The principle, in our submission, must be the

same. Indeed, when my friend talks about the

advantages of a civil procedure: discovery, the
rule in Jones v Dunkel, interrogation, and things

of that kind, he is foreshadowing a fully blown

civil trial as a preliminary to committal

proceedings which are themselves administrative

preliminary to the criminal trial. Your Honour,

anyone who was not in the law would think that

would be very very amusing and very clever of

Mr Elliott, but anyone who was in the law would, in

our respectful submission, not feel very proud of a

system of justice to have been able to produce such

results.

I suppose on discovery Mr Elliott is going to

want to be able to say, well, just about everything

Elliott 88 20/12/93

you have got in·the whole inquiry is discoverable

because it might lead to a potential line of

inquiry, et cetera, et cetera. Your Honour, on the

question of whether the magistrate has got
jurisdiction to stay the proceeding as an abuse of

process, we never said that the magistrate would.

HER HONOUR:  I think this is very peripheral, is it not?

MR JESSUP: Yes. Yes, Your Honour. I accept that

indication from Your Honour.

HER HONOUR:  It is an aspect only of whether it is

exceptional and, perhaps, balance of convenience

but it is an aspect only.	It is not an issue that
is directly involved.

MR JESSUP: It is. It is, Your Honour. I think I have

picked up on the way through, Your Honour, some of

the matters to which we wish to refer. My friend

made submissions about whether the criminal trial

would be faster than the civil trial, or vice

versa. One can only say, Your Honour, that a

Federal Court civil proceeding of the kind which

this application seeks to set up would involve, in
the first instance, jurisdictional challenges on

every conceivable basis. In the second instances,

pleadings challenges and the way that pleadings are

presently structured. Thirdly, we would embark

upon my friend's process of discovery and when that

happened there would be all sorts of objections on

public interest immunity and the like and,

Your Honour, in our submission, it would certainly

not be a simple or speedy proceeding.

We have been accused for not calling

witnesses, Your Honour. We, in fact, called three

witnesses, not two; only two of whom were cross-

examined. The two main witnesses we called

happened to be the respondents in these

proceedings.	So they were not chosen by ourselves,
Your Honour, they were chosen by the applicants in

making them respondents.

My friends have said that one of the

exceptional things about this case is that it
involves the use of coercive powers by the National

Crime Authority. The interesting thing about it,

Your Honour, is that at the time when those

coercive powers were used, no court proceedings
were taken. If there is anything in their point

about the misuse of coercive powers, it lies in the

mouth, we would submit, of the person against whom

the coercive powers are used to complain about it,
not against a person who might, some months or

years later be prosecuted by reference to part or

Elliott 89 20/12/93

all of the material collected pursuant to those

powers.

So, if someone goes along to a section 28 investigation by the Authority, assume for the

moment that the investigation is completely without

power, but if they do not complain about it then

that is the end of the matter. I think in the

course of my friend's submission Your Honour was

attempting to extract a view as to what would

happen if the Authority came across information

which was not within the scope of its references.

In our submission, Your Honour, it could use that

information. It has voluntary as well as
involuntary procedures and there is a provision in

the Act which is section 12(6), which enables it to

use material collected under one investigation for

any other investigation. So it could be running

two investigations, or more than two and, if in the

course of investigations for which it needs

references, it comes across information which might

be useful to an investigation for which it does not

need a reference, then it can just use it for that

purpose, and the Act makes that clear.

Your Honour, in view of the time - there is a

great deal of material, of course, that has been

put before you, both in writing and verbally, but

is there anything else I can assist you with,

Your Honour.

HER HONOUR:  No, I will leave it in your hands; you should

not cut yourself short merely on account of my

time.

MR JESSUP: No, I understand that, Your Honour. Well I

think I have covered everything so far as we are

concerned and it is just that I would not want to

have omitted to deal with something Your Honour

might think was peripheral, but I think I probably

have not. If Your Honour pleases.

HER HONOUR:  Thank you. Mr Jopling.

MR JOPLING: If Your Honour pleases, I will be very brief.

I would adopt respectfully the submissions of my

learned friend, Dr Jessup. So far as evidence is

concerned, what I would say to Your Honour is that

there was clear uncontradicted evidence before the

learned trial judge and before the Full Court, so

far as my client was concerned, to the effect that

it was not the intention, and had never been the
intention, of the Director of Public Prosecutions
to lay charges against any of the applicants in

these proceedings, or to direct any other person to

do so, and that evidence was put forward in an

affidavit by the solicitor to the OPP, Mr Buckley,

Elliott 90 20/12/93

and existed in the form of a letter that he had

caused to be sent to each of the solicitors for the

applicants, namely GWP Aarons & Co and Holding

Redlich. And that was in the form of an annexure

to an affidavit of that solicitor, Mr Buckley,

sworn on 4 October 1993.	I have nothing further to
add, Your Honour.

HER HONOUR:  Yes, thank you.

MR SHER: In that last matter, Your Honour, I would point

out that the affidavit of Mr Buckley was what his

instructions were; it was thus a self-serving

statement which nobody swore to and about which
Mr Buckley could not be usefully cross-examined.
So we have this mere assertion affectively from the

bar table as to what the OPP intends to do, but the evidence revealed that the OPP had misled the legal

advisors of the applicant by telling them he had

not received a reference from the NCA when the
evidence revealed he has been working on it for two

years. Further, the evidence also revealed that he

was asked on the Friday before the Monday when the

interview was threatened, as a matter of urgency,

to let them know about the interview, and he

responded by ordinary post which would have been
received, and was received, after the interview was

due to start.

HER HONOUR:  I do not follow that; I mean, how was the OPP

connected with the interview?

MR SHER: Because the applicant did not know who was

responsible for Mr Seymour and his conduct.

Mr Seymour is purporting to act, as it would appear

now, as a Victorian policeman, but that was not

known to the applicant, so the applicants'

solicitors approached both the NCA and the OPP to

find out about postponing Mr Seymour's proposed

interview. The OPP's response was to say, we have

got no reference from the NCA, which was untrue,

and answered a critical letter sent by fax, seeking

an urgent reply by ordinary mail, which was

received after the interview was due to commence.

The inference is that they were determined that

that interview be conducted and that if it was

conducted and Mr Elliott did not answer any

questions he would be charged, the OPP saying

immediately he was charged he was going to take the

matter over. So there was an inference, undenied,

that the OPP was well aware what was going on, was

orchestrating the matter in conjunction with the

NCA, and not a single witness who could be

cross-examined, was called on behalf of the OPP to

rebut that inference. So that my learned friend's
point is really no point at all; we submit that the

matter remains unanswered.

Elliott 91 20/12/93

Now, if I could shortly deal with some of the matters Dr Jessup raised. He firstly raised the

question of whether we had complained about the

behaviour, viz-a-viz section 12, and we have

exhibited to the material, Your Honour, a draft

notice of appeal in relation to the complaint which

we made to the Full Court about Mr Justice Foster;

that is exhibit "TJC5" to the affidavit of

Mr Cantwell. Your Honour will find it a specific

ground of appeal on page 7, which specifically

raises the very issue that my learned friend has

accused us of not having raised. If Your Honour looks at paragraph 6 on the previous page, which

sets out a series of complaints, and then at

subparagraph (d), the ground of appeal that we wish

leave to argue to the Full Court was:

The learned trial judge should have held or

found that none of the References the subject

of this proceeding authorised the NCA to
investigate the foreign exchange matter and
that accordingly the NCA was not authorised by
the NCA Act to deal with any of the evidence

or other material gathered by it pursuant to

any such investigation and in particular was

not authorised to deal with such evidence or

material pursuant to section 12 of the Act.

So we were specifically complaining of the very

matter that we drew to Your Honour's attention and

I might tell Your Honour that we put in written

submissions, which also dealt with the matter, and

we had put in submissions to a Mr Justice Foster

about the topic, and in relation to illegally

obtained evidence being likely to be excluded. We

specifically referred His Honour in our written and

oral submissions to both Pollard's case and

Foster's case in this Court, reported this year.

Your Honour would be familiar with both, having

been a member of the Bench in both instances.	The
first in point of time was Pollard, (1993)
67 ALJR 193.	Your Honour will recall that was a

case about a breach of the provisions of the of their rights and the questioning of people in custody, where the Court indicated that a breach of those provisions would almost certainly lead to the

rejection of that evidence in the exercise of the

Court's discretion applying Bunning v Cross.

And in Foster v Reg, (1993) 67 ALJR 550,

applying Pollard's case, where there was an alleged
police infringement of the applicant's rights in

relation to arrest and where the Court held that:

Having regard to the nature and effects

of police infringement of the appellant's

Elliott 92 20/12/93

rights and to other relevant factors, the case

was one in which the proper exercise of the
trial judge's discretion required the exclusion
of the confessional statement on the grounds of

unfairness and also on public policy grounds -

applying Bunning v Cross and Pollard v Reg. Our

written submissions to Mr Justice Foster, referring

to those two cases, amongst others, were made.

Now there is a fundamental assumption which we

respectfully submit is erroneous in my learned

friend's argument, when he talks about the

embarrassment of the criminal courts in relation to

rulings on admissibility and the like being made by

the civil court, and then embarrassing the criminal

court. Our case is, there will be no criminal

court, that there should be no charge, and thus the
question of embarrassment, we say, does not arise.

And so, it begs the question to suggest that the

civil court should not intervene, because it might

embarrass the criminal courts. The fundamental

case the applicants make is there should be no such

proceeding.

Now amongst the arguments that were advanced

in relation to special leave, there are a number of

matters with which we just fundamentally disagree,

Your Honour - I do not know if it is of any

assistance to say that we respectfully that my

learned friend's point is clearly wrong. To argue

that this case is merely a case of practice and

procedure is to give to those words a meaning far

beyond anything that would be normally applied to

them. From the viewpoint of the applicants, this

has been a final matter. It might have been an

interlocutory injunction and an application for

leave to appeal, but the consequences of - the

decisions in the case are final.

And so, whether it be correct to describe them

as matters of practice or procedure or not, they

fundamentally effect by their result the rights of

the applicants and, in our submission, they deal

with not merely matters of discretion, but

fundamental errors of law. At the end of the day

to say, I intend to exercise my discretion on the

balance of convenience by deciding that the law is

as follows is, in our submission, not to make a
decision on discretionary grounds, but to make a

decision based upon a misapprehension of what the

legal position is. And, in our submission, the

court has taken far to narrow a view of the

interference in the criminal process by civil

courts and what are exceptional circumstances.	And
indeed, my learned friend did not really address

Elliott 93 20/12/93

much argument to Your Honour as to the question of

what exceptional circumstances actually encompass.

Now, the rights of the parties thus we say are

determined by these proceedings in a very real way.

Whether they be practice and procedure or not or

discretionary decisions, we say they are erroneous

in law and final in their effect.

The question of Bennett's case is, we say - an

attempt is being made to distinguish it - in

principle, there is no relevant distinguishing

feature. Whether or not the case concerned the

laying of a charge in respect of a person in

custody and that provides a reason for not applying

it to the conduct complained of here, has not been

elaborated by my learned friend, but merely been

observed by him. It does - - -

HER HONOUR: Well, there is one aspect, is there not, that

is different and that is that but for the
illegality there would be no jurisdiction, which is

not quite the same thing as is involved here.

MR SHER:  Yes, I agree with respect, but what that means is

that you then need to look at the issues that give

rise to that, and the issue that gave rise to it is

the same issue as here, namely unlawful executive

action. Now I appreciate, Your Honour, that the

question in Bennett's case did involve a question that went to jurisdiction, but here we say, for a

different reason, that none the less, as a result

of unlawful executive action, there would be no
exercise of jurisdiction, there should be no

criminal charge.

HER HONOUR: Well, your arguments are predicated on the

assumption that if you succeed it is an injunction

against the whole world, when it is not, when

anyone can go and lay a criminal charge, whether

they get the evidence or not it is another matter.

MR SHER:  I am glad Your Honour raised that, if I may say

so, I meant to say something about it earlier and

overlooked it. This was one of the factors that

the Full Court took into account and the reason why

we submit it is inappropriate to have regard to it

in the present circumstances are twofold: firstly, if there was some evidence to suggest that a charge

against any of these applicants might be based upon

HER HONOUR:	Should I continue?
MR SHER:	Yes, I think so, Your Honour.
HER HONOUR:	Yes, you do not object?

Elliott 94 20/12/93

MR JESSUP:	I am sorry, Your Honour - - -
HER HONOUR:	I think I have to continue the injunction, for the moment at least - - -

MR JESSUP: For the moment, Your Honour, yes, we have no

objection.

HER HONOUR: Yes, thank you; well, it is continued.

MR SHER:  Thank you, Your Honour. I must say, I was making

an assumption that I did not really think my

learned friend's clients would do something between

4 o'clock and whenever I sit down or whenever

Your Honour gives judgment, but perhaps one needs

to be safe.

We make two points: we say, firstly, if there

were some evidence to suggest - in our submission

there is absolutely none - that the charges that
are threatened here are based upon material other

than that gleaned as a result of the NCA's exercise

of powers, then one could well understand one

tailoring an injunction to fit that circumstance

and prevent only the use of the illegally obtained

material, and we would not quarrel with that. The

reason that we sought and obtained injunctions in the form which they were obtained is because that was the only material before the Court and to seek

to obtain an injunction in wider terms, in our

submission, would have been almost certainly doomed

to failure because there would just be no evidence
to justify it. And the injunctions at the present

moment, Your Honour, with respect, only operate

effective to prevent charges being laid on the

basis of what we say is an unlawful investigation.

Now, if I am wrong about that, the cure lies

not in throwing the applicants out of court, but

granting an injunction in appropriate terms, and I

make it clear to Your Honour that we do not believe

we could successfully resist an attempt to tailor

the injunction to appropriate relief to prevent

those who we are seeking to enjoin from using the

product of an illegal investigation. One could

well understand the Full Court making the

observation they did if there had been some

evidence to support it, but it is just pure
conjecture.

Now, the other answer that we would give,

Your Honour, is to say that it is my understanding

of the law, and I am subject to correction, but an

injunction can always be varied in appropriate

circumstances and if the authorities or some law

enforcement agency, or even the OPP, were able to

come forward and say, "We have evidence, it has is

Elliott 95 20/12/93

no connection with the NCA investigation, entirely
properly obtained, which points to criminality on

the part of any one or other of the applicants, and

if this injunction on its proper interpretation

restrains us from using that material, we want it

varied", we do not see how the Court could not vary

it and we do not see how we could resist it. And,

if it is necessary, we would not object to any

appropriate liberty to apply provision, which, as I

understand the law, Your Honour, is always involved

in an injunction but if I may, with respect,

remind Your Honour this was only an interlocutory

injunction we were seeking and it was always

capable of variation; there would always be liberty

to apply and that problem could be easily cured,

and it has from time to time been varied, in fact,

as circumstances have changed.

Now we apprehend that these injunctions go to

prevent any of the present respondents laying
charges on the basis of, we say, the illegally or

unlawfully obtained material, and if that is a view

that can be shown to be wrong, well then, we are

happy to work towards reframing them in appropriate

terms. That is what we were seeking to do. Our

clients were not seeking to bar all persons for all

time against laying charges based on proper

material. I might say, Your Honour, that the view

expressed by the Full Court on that question, as it

were, came out of the blue; it was not a matter

that I recall being argued by anyone or put, and it

might perhaps have been dealt with in the way in

which I have just dealt with it if it had.

There is another important point that my

learned friend made and that deals with this

concept that laches, delay or failure to complain

about the terms of reference or the asking of

questions about the foreign exchange matter.	Now,
that submission totally overlooks the factual
matrix in which this case has been argued, which is
as follows:	no one - that is to say not one single

applicant - knew about the earlier references

until, in Mr Elliott's case, there was discovery

from the ABC, which was after he had given his

evidence on the two occasions on which he was asked anything at all about the foreign exchange matters. Secondly, no one, including Mr Elliott, knew about

A44. So that the document which shows for what

matter the original references were obtained and

the terms of those original references were not

known. The fact that there had been earlier

references was known in the sense that they are

referred to in the NCA's reports but, in what terms

they were obtained, nobody knows.	They are not
documents which anyone can get.

Elliott 96 20/12/93

HER HONOUR:	They are not attached to the summons?
MR SHER:	When you get a summons, you get a copy of a

reference, but all Mr Elliott ever got were the

latter three, so that he never saw, until

discovery, the terms of the earlier three

references.	I might say, Your Honour, that there
is seven references altogether here.	The exhibits,

the six references that were tendered in evidence,

were all produced by the applicants, in effect, by

Mr Elliott.	The three in September he produced,
because he had been served with them.	The other

three he was able to produce because they were in

the discovery of the ABC. There is another

reference that has never been revealed, which is
the first South Australian reference which was

replaced by another one in the latter part of 1990.

It has never been revealed, and we still do not

know what is in it.

So that when people talk about sleeping on

your rights, which we say goes for final relief,

nobody knew about the three earlier references

terms and A44 before discovery which was in 1992

after our client had given evidence, and about a

year after he had given evidence for the last time

which was merely to answer one question. More than

that, when Mr Justice Foster described it as a

highly elaborated afterthought, what His Honour failed to do, we submit was, in fairness to the

applicants, was to give any weight to the rule in

Brown v Dunn. Now what happened was, that

Mr Elliott swore three affidavits and he was not

cross-examined at all. It was not sought to put

anything to him that he had slept on his rights,

that he had known that these references did not

cover the foreign exchange matter and what
explanation did he have, just absolutely nothing

put to him at all. Purely argument from the bar

table, from a party who failed to disclose any

documents at all in relation to the references.

Your Honour, we say it is impossible to

conclude that there has been any sleeping on rights

sufficient to have denied the interlocutory relief

sought and if after a concluded trial it would

appear that the equitable bars to relief outweigh

the equitable right to relief, that is the
appropriate time for the Court to act upon them.

If I can just revisit quickly the position in

relation to our application for a stay. It is
clear from the reasons of the Full Court, to which

Your Honour is now being taken, that the only

matter they considered for refusing a stay was

their view that the civil jurisdiction should not

be exercised to interfere with the institution or

Elliott 97 20/12/93

prosecution of criminal proceedings which is the

substantive point. So that, in effect, having

decided that they would not interfere, could hardly

be expected they would then say, "But on the other

hand you are likely to win in the High Court." It
is the only reason they gave and there is no

suggestion that they took any other thing into

account and they certainly did not take

Mr Justice Brennan's decision concerning the

liberty of the subject into account.

My learned friends seem to want to have their

cake and eat it. They say on the one hand, there

is no liberty of the subject involved in this case,

but they the.n argue that the court had no

jurisdiction under the cross-vesting legislation

because it is a criminal matter. Now, why is it a

criminal matter? It is because charges are

threatened and as Mr Finkelstein pointed out, the

first time the NCA appeared, people will be

arrested, they will be put on bail and one of the

conditions that will be imposed is they will have to surrender their passports and will not be able

to leave the country.

We say this is a matter involving the liberty

of the subject, because the moment a person is
charged, which is what we are trying to prevent,

their liberty is in jeopardy. If the Court

pleases.

HER HONOUR:  Yes, thank you. Before you sit down, what

exactly ..... ?

MR SHER:  The order that is presently in force, subject to

what Your Honour has just said a few moments ago,

is in the Full Court's decision as having refused a

stay, they suspended the orders they made

dismissing the motion until a given time. The

effect of dismissing the motion is to get rid of a

stay given by Mr Justice Foster on his order
dismissing a motion.	But what actually happened in

the first instance was that we had two injunctions

from Mr Justice Olney. Rather than seeking to work

out some complicated order which has the effect of

staying stays on orders dismissing motions, we

thought we would positively ask the Court for two

injunctions in the same form as Mr Justice Olney
gave subject to grammatical changes to take account
of the fact the matter is in the High Court, and

they are set out in our summons. Does Your Honour

have a copy of the summons for Mr Elliott? No one

has discussed the first order which is a abridgment

of time which, in view of the urgency of the

matter, we have not given the usual notice and I

would assume that is not opposed. Then the

substantive orders we seek are that, "Until the

Elliott 98 20/12/93

hearing and determination of the application for

special leave to appeal or further order the four

respondents by themselves, their officers,

employees, agents or otherwise howsoever be

restrained", and then the two injunctions are there

set out.

HER HONOUR:  Did you not give some undertakings before?

MR SHER: Yes, we have given undertakings as to damages.

HER HONOUR:  Did you give some undertaking about corning and

going from the jurisdiction?

MR SHER:  The undertakings - the consent order that was made

by Mr Justice Olney or maybe Mr Justice Foster was

that Mr Elliott had to give three days notice of

any intention to leave the jurisdiction. It is not

intended that we avoid any of these obligations. "The applicant", that is Mr Elliott, "notify the

third respondent within three days prior to his

departure overseas and provided the third

respondent with a copy of his itinerary." That

order would remain, we would anticipate, and

certainly do not seek to avoid that obligation. I

think at some stage I was asked for and gave the
usual undertaking as to damages and, of course, my

instructions are to give such undertaking again and

we would undertake to seek to expedite the hearing

of the application for special leave.

HER HONOUR:  I notice here, and I think I should at least

say something, there is some reference - I think it

is in the Full Court decision about February - - -

MR SHER:  February. What happened was that we made

inquiries of the Registrar and were told that it

may be possible for the matter to be heard in

February. It was merely an indication subject to

any direction from the Court of necessity, and I

communicated that to the Full Court. That is the

reason why that - - -

HER HONOUR:	My understanding is that the February lists are already complete, but that is just my
understanding.

MR SHER:  We are entirely in the Court's hands. I think

what I said to the Full Court was that if they were
prepared to give leave to appeal - this was before we lost - we could start the appeal the next week. I can say to this Court that if the Court could

give our clients an opportunity to make their

special leave application virtually at any day from

now on, having prepared it, we would be prepared to

proceed on very short notice. So we would give an

undertaking that we would expedite, in so far as it

Elliott 99 20/12/93

is within our power to do so, the hearing of an
application for special leave and would, subject to
the directions of the Court - we obviously have to

prepare an application book, Your Honour, but it

would certainly be ready in February, and well

before that, in fact.

There are a few grammatical changes in the

injunction sought from this Court to accommodate
the fact that we are in a different court in a

different circumstance. And Your Honour will see

that paragraph (b) refers to:

material obtained by the Third Respondent, its
officers, employees or agents for the purpose

of considering -

Now that would mean that the only material that

cannot be produced to somebody else to be

considered would be material obtained by persons other than the Third Respondent, as the NCA. We frankly do not believe there is any, Your Honour,

but there is no evidence either way.	If the Court
pleases.

HER HONOUR:  Yes, thank you. Yes, Mr Lally.

MR LALLY: Undertakings were given in similar form to

Mr Justice Foster in Sydney in respect of Messrs

Camm, Scanlon and Biggins, concerning giving notice

before travelling overseas, and otherwise in the

same form, and those undertakings would be

continued on their behalf and I so give them to the

Court.

HER HONOUR:  Thank you. I would propose, I should say at

this stage, to reserve, in the expectation however

that I can give a written decision not later than Thursday, perhaps Wednesday. In the meantime, if

there were not undertakings forthcoming, I would

grant orders as in paragraphs (a) and (b) until

delivery of judgment on this stay application,

subject to the undertakings which Mr Sher and

Mr Lally have just given.

MR SHER:  Your Honour, I offer those undertakings to the

Court, Your Honour.

HER HONOUR:	Yes.
MR JESSUP:	Your Honour, paragraph (b) differs from the orders hitherto in place in another respect to
which I do not think attention has been drawn. The
existing orders do not use the expression "from
inviting any person or authority".  They use the
expression "from inviting any police officer, other than the First Respondent". And the other thing to

Elliott 100 20/12/93

which we would draw Your Honour's attention is that

the terms of the order presently applicable with

respect to travel outside Australia, require

notification within three days prior to the

departure, by which I think it was intended to mean

not less than three days prior to the departure.

If what Your Honour is contemplating is something

which will hold over, as it were, until you give

judgment in this matter, which, with a view to it

being Thursday-ish, that would probably be

satisfactory.

HER HONOUR:  Yes.

MR JESSUP: But, if it were in any other sense - it being

Christmas/New Year just about being upon us, three days would no longer be at all workable, but I

think under the circumstance, Your Honour, we can

just draw that to your attention and go no further.

HER HONOUR:  Now, should I make the orders or do you give

the undertakings, as in terms of (a) and (b), until

Thursday?

MR JESSUP: Yes, Your Honour, we have got instructions to

give undertakings substantially in the terms of the

existing orders, but if Your Honour feels it more

convenient to go with (a) and (b), that would be

within our instructions.

HER HONOUR:  Yes, well at least I have got a record of those

and the Court has a record of them.

MR JESSUP: Yes. Until you give judgment in this matter.

HER HONOUR:  Yes, which will be not later than Thursday and

maybe earlier.

MR JESSUP:	Thank you, Your Honour.
HER HONOUR:	Yes, and you give the undertakings with respect

to travel in the same terms as previously?

MR SHER:  Yes I do, Your Honour.

HER HONOUR:	Yes, thank you.	Very well, I will reserve any
MR SHER:	I do not think we have heard from Mr Jopling.	I

know they keep saying they are not going to charge

anyone, but - - -

MR JOPLING:	Your Honour, we contend to give those undertakings, but our primary position is as stated
in that letter, that we do not intend to charge
anybody and in those circumstances I wonder whether
Your Honour seeks that undertaking from us?

Elliott 101 20/12/93

HER HONOUR:  I do not think so.

MR SHER: Well, there is just one concern, Your Honour, and

that is this is not the first time we have sought

an undertaking from the Director of Public

Prosecutions. The last occasion we sought an

undertaking because they had the power to institute

proceedings in a magistrate's court themselves and

they refused to give it.

HER HONOUR:  Yes I understand that, but whatever

jurisdiction there is with respect to the NCA, the

position is not necessarily the same with the OPP

of Victoria, particularly if the OPP is operating

under a Victorian Act.

MR SHER: There are some fascinating jurisdictional

questions involved in what Your Honour has just

said. I think in the circumstances I will sit

down, Your Honour.

HER HONOUR:  Yes, thank you. Very well then, I will reserve

my decision and now adjourn.

AT 4.21 PM THE MATTER WAS ADJOURNED SINE DIE

Elliott 102 20/12/93