Lee & Anor v New South Wales Crime Commission

[2013] HCATrans 93

[2013] HCATrans 93

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S29 of 2013

B e t w e e n -

JASON LEE (AKA DO YOUNG LEE)

First Appellant

SEONG WON LEE

Second Appellant

and

NEW SOUTH WALES CRIME COMMISSION

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 MAY 2013, AT 10.15 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for both appellants with MS G.A. BASHIR and MR S.J. FREE.  (instructed by Nyman Gibson Stewart)

MR I.D. TEMBY, QC:   I appear for the respondent with MR E.C. MUSTON.  (instructed by New South Wales Crime Commission)

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia:   May it please the Court, I appear with MR D.F.C. THOMAS for the Attorney-General for the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   If the Court pleases, I appear with my learned friends, MS N.J. ADAMS, SC and MS J.E. DAVIDSON, for the Attorney-General for New South Wales who intervenes in the proceedings.  (instructed by Crown Solicitor (NSW))

MR G.J.D. DEL VILLAR:   May it please the Court, I appear for the Attorney-General of the State of Queensland intervening.  (instructed by Crown Law (Qld))

FRENCH CJ:   Yes, Mr Game.

MR GAME:   The Court should have our outline.  Shall I pause while your Honours glance at it, or shall I ‑ ‑ ‑

FRENCH CJ:   Just give us a couple of minutes, Mr Game.  It might be helpful if we have time to glance over it.  So you are not running any constitutional argument?

MR GAME:   No, your Honour, but there is a but to it which is that if sections 31D and 63 were construed in such a way as to determine decisively prioritisation and exclude considerations of fair trial then we would say that the provisions are unconstitutional but nobody is arguing that proposition. Nobody is pressing for that construction but, we say, that that is the construction that Justice Basten gave to the provisions.

The difference between the parties is as to how you read the judgments.  So, a question would only arise if, contrary to the submissions of all the parties, the Court concluded both that the construction that we give to Justice Basten’s judgment is correct and that that is the correct construction of those provisions, but nobody is submitting that to the Court.

CRENNAN J:   Is there a critical difference between Justice Basten and Justice Meagher in the sense that Justice Basten in paragraph 56, as I recall, seems to suggest possible authorisation of contempt of court, of a real risk, whereas Justice Meagher takes a somewhat different view of how the provisions work and give some emphasis to the ability of the court to supervise and control the examination of proceedings in due course, both by reference to powers to have a hearing in private, non‑publication orders, and generally the inherent jurisdiction to prevent any abuse of process.

MR GAME:   What we say about that is this; that there is a difference, but on critical issues we say that the judgments speak in the same terms and the reason is this.  If you look at paragraph 98 of Justice – and there has been some switch of emphasis, and I am not criticising your Honour for it, to Justice Meagher’s judgment but we say, ultimately, that Justice Basten’s reasons are the reasons of the court, that Justice Meagher does in the critical respects agree with Justice Basten.  It is paragraph 98.

HAYNE J:   What page?

MR GAME: I am sorry, your Honour, page 147. Now, what that means, we say, is this; that the error which we say is made at paragraph 47, page 130 of the appeal book. We say, really, that paragraph 47 is the critical error in the judgment. You will see we list four errors but if you want to find one that we say is the most important is paragraph 47 because what is happening in paragraph 47 is section 63 has been given far more work to do than it actually does.

We say that section 63 just reflects the common law which is the fact that you have been prosecuted does not – is it overturning your Smith v Selwyn and the cases that followed that, but that had already been dealt with by the common law in a series of cases which collected in McMahon v Gould. But what we say is this; that 47, in descending order, has the effect of excluding any basis for putting off the examination because of section 63. It says it:

effected a de facto stay. The statutory purpose revealed by s 63 is not to be ignored because the procedure in a particular case involves an adjournment application . . . If the fact of criminal proceedings is “not a ground” to stay an examination under s 31D, it should not be an available ground for resisting or delaying examination on any other procedural basis. Further, the purpose is not avoided by arguing that the real ground is the risk of prejudice to a criminal proceeding –

If you read section 63 that way then you are boxing in prioritisation of the confiscation proceedings in the examination.
CRENNAN J:   His Honour might have had in mind a distinction between a risk as distinct from a real risk, which would be the Hammond test.

MR GAME:   But what, your Honour, we say about that is that what Justice Basten is saying is that in effect the content of the discretion in 31D is to be found in sections 63 and 13A and we say, consistent with cases like De Vonk and OK, that that only speaks to a part of the issue.  There is an entirely different question when you ask yourself whether or not you should exercise the discretion to make the order for examination. 

So if I go back to paragraph 98, we say – there is something important that I should say straightaway, which is we say in a sense that the parties are talking on two different tracks about the risk of prejudice because what we say is, built into the judgment of Justice Basten is an acceptance that there is a risk of prejudice, but that it is authorised, and that you cannot have regard to it because of the content of sections 13A and 63. That is our argument. If we are wrong about that argument, then we lose the case, and we are not shifting on that. So that is why we are not buying into the Commonwealth’s restated constitutional issue.

CRENNAN J:   What about the Hamilton v Oades approach that there may be a risk but there are mechanisms which ensure that it does not mature into a real risk of interference with the criminal proceedings, such as not allowing a question about to elicit an admission of guilt, not allowing a question which would lead to disclosure of defences and possibly making some arrangements in relation to derivative use by the prosecution.

MR GAME:   We accept that there can be mechanisms, but we say the fact that there are mechanisms does not undercut the discretion that resides in 31D, but there is a point ‑ ‑ ‑

HAYNE J:   The acceptance of mechanisms assumes that a line can be drawn, and at some point in your submissions you are going to have to inform me where that line is and how it is drawn.

MR GAME:   I will try, your Honour, but it is not the easiest question in the world.

HAYNE J:   No, it is not.

MR GAME:   So, if I sit down and your Honour is still dissatisfied, well I will have to ‑ ‑ ‑

HAYNE J:   Do not invite that, Mr Game, do not invite that.

MR GAME:   But can I say this; that if you look at just before – if you look at paragraph 101, last sentence, so that is on page 148 of the appeal book.  So we say about Justice Meagher as well that Justice Meagher is, shall I say, attaching himself to the idea that this case falls in line with the Hamilton v Oades regime, but ‑ ‑ ‑

CRENNAN J:   I think the last sentence in paragraph 100 indicates his Honour’s position.

MR GAME:   Yes.  Can I just say this, and it may or may not be important and it has not been drawn out, but what happened in Hamilton v Oades was actually at a time after the order for the examination had been made, and if you look at cases like, well, Gordon and Brown, for example, Justice Gaudron’s judgment, and it has not really been drawn out, but the decision to make an order for examination is a distinct exercise of judicial power.  The actual content of the examination is much more in the nature of an administrative exercise, not that there is any question of constitutionality about that, but it does tend to emphasise the importance it attaches to the exercise of discretion under 31D.

HAYNE J:   But are you not then melding two questions that need to be kept separate?  One, what is the ambit of the power to order examination?  Does that power extend to ordering examination of a person subject to a charge not yet tried about matters the subject of the charge?  One question.  Second question, if the power extends to permitting the making of such an order, what are the factors that govern the exercise of the discretion whether to make the order?  Do we not need to begin with question 1, ambit of power?

MR GAME:   We have not been ambitious enough to say that it cannot extend to a charged person, but ‑ ‑ ‑

FRENCH CJ:   You mean as a matter of construction?

MR GAME:   Yes.  May I just give an example that it cannot extend in any circumstances?  Could I just give an example – and it may be that the content of – but say that there was an immediate concern about dissipation of assets, and there was cogent evidence of that, then an exercise of discretion under 31D might involve examination about the question of the dissipation of the assets.

HAYNE J:   But hence my question, does the power extend to ordering examination of a person charged but not yet tried for an offence about the matters the subject matter of the charge?  The qualifier at the end is where the real work of the proposition is done.

MR GAME:   I am going to be standing here saying I cannot answer your first question, but as a matter of construction, yes.  But as a matter of the proper exercise of the discretion, we say no.

HAYNE J:   I think you give the game away at that point, Mr Game, because if the power is there, what are we debating, House v The King discretion?

CRENNAN J:   Are you contending for a read‑down of the power?

MR GAME:   Let me just reframe my propositions.  I am contending for a reading down of the power to exclude an examination which may amount to a contempt.

HAYNE J:   That is accepted on all hands, I think.  I think at least New South Wales, as I read their submissions, accept that the power given by 31D does not authorise an examination that would constitute either a contempt or an abuse of power.  I have in mind paragraphs 13 and 17 of their submissions.

MR GAME:   I am going to have to reframe what I put, and I am going to have to put that it cannot extend to the content of the subject of the charge itself.

HAYNE J:   There is then a further question about whether that is reading down, or whether consistent with what the approach taken by the Court in Daniels is simply a question of construing the Act against a defined legal background, and whether the appropriate – and this is a question, Mr Game, do not accept it as a gift from the Bench.  The question is what is the proper principle of construction that informs our approach to 31D?  We know at least there is Coco in play – do not interfere with basic common law rights, except by clear words or necessary intendment – and we observe what is said about privilege against incrimination, clearly dealt with. 

But at least for my own part, there is a further question about whether a disturbance – I use the word to be wholly neutral – a disturbance of an otherwise wholly accusatorial process for criminal justice from investigation through to verdict is to be achieved otherwise than by clear words or necessary intendment.  Is that the relevant principle of construction that is engaged?  If it is, what is the consequence of applying it to 31D?  And only if you go through those steps does it seem to me that we come to identify what the question is – leave aside what its answer is.

CRENNAN J:   Well, the starting point I dare say is you would agree with Justice Hayne about Daniels being the most recent statement of the Potter v Minahan principle, and Coco.

MR GAME:   Yes, if I could just digress for one moment.  What we say is that if you chase this thing through you end up with a Trojan horse in the criminal procedure because you end up with a court‑authorised process whereby you have an examination in relation to proceeds of crime, criminal offences established in civil proceedings, that material by the necessary two hats that the Crime Commission has as an investigator under the Crime Commission Act (NSW) - the implications that Justice Basten sees that it is authorised for, in effect, to not only go to the investigators but to the prosecution. You do actually end up with a different criminal procedure and a criminal procedure which does impinge on the accusatorial process if you do not read section 31D down or you do not have a protective regime around it of the kind which is under challenge in X7 and 25A of the Australian Crime Commission Act.

CRENNAN J:   Where does he say that it authorises the material going to the prosecution?

MR GAME:   There is another judgment now which is in the criminal case and there is another judgment of Justice Basten in a case called SD where his Honour says that - contrary to that which he says at paragraph 62, in SD he says that 13(9) does not work to prevent the material going to the prosecution.  We have listed it.  But if you go to paragraph 72 of this judgment at 138, what is really being said there is that Parliament has considered this, in effect, and authorises a process whereby it is, in effect, available for derivative use and the like. 

So if that be correct then what I said at the beginning follows, which is that you actually have in legislation about examinations in civil proceedings for recovery of proceeds of crime you have amended criminal procedure.  That is where you end up.  So we would say, applying Coco, we would come back to 31D, that when understood in its statutory context it should be read down to exclude orders enabling questioning on the subject matter of extant charges and we would say that that reading down exercise can be done.

Now, your Honour Justice Hayne said almost straight away if you are not in that territory you are back on House v The King”.  But if the first proposition is incorrect and you are back on House v The King you would have, shall I say, a compelling consideration with a capital C, would be protection of the administration of criminal justice, namely, a protection of the system as it exists as an adversarial system.

HAYNE J:   But “the system as it exists has been altered statutorily” is the premise which then is informing the debate that is to occur.

MR GAME:   Well, what I was just trying to say before is that all has been changed - when I say all that has been changed is in one piece of legislation about proceeds and confiscation you have de facto achieved a change of process.  That is the critical thing.

GAGELER J:   Just so I understand, are you now putting a Coco proposition?

MR GAME:   I am now putting a Coco – but we ‑ ‑ ‑

GAGELER J:   What is the basic or fundamental right that you say is being abrogated?

MR GAME:   The right which is being abrogated is the privilege against self‑incrimination, the right not to be in the right of silence, the right not to be forced to disclose your defence.

FRENCH CJ:   Privilege against self‑incrimination is clearly affected by sections 13 and so forth.  The proposition that is being put to you, I think, by Justice Hayne is not about the privilege against self‑incrimination, it is about the criminal trial process and basic common law understandings of what that involves and the impact of this provision if applied to persons facing charges or actually undergoing trial.

HAYNE J:   My first question about construction is whether Coco‑type principles, Potter v Minahan‑type principles inform the construction process in that area and that is a live question.  It is not one, I think, that is determined yet.  That is why I say - what is the construction principle?  Apply the principle, what is the outcome?

MR GAME:   I will have to have another try in answering Justice Gageler’s question.  The answer to the question would be the extant right to trial by the accusatorial process.

CRENNAN J:   I think you have drawn this out in paragraph 63 of your submissions, the point I think you are now making.

MR GAME:   Yes.  I would have to openly accept that I am putting the arguments now in a – putting a different emphasis on that ‑ ‑ ‑

HAYNE J:   I think it is usually described in the judgment as “Under the pressure of argument, counsel”.

MR GAME:   But it does not recall that I was seen scratching my head.

GAGELER J:   So the right is the extant right to a trial by the accusatorial process?

MR GAME:   That is right.

GAGELER J: You then need to make some factual connection between the making of the order under section 31D and the process of trial.

MR GAME:   Well, I think the answer to that is that – yes, but the answer to that is that you find the accusatorial system reflected in all of the common law principles and the criminal procedure legislation to which criminal trials apply regardless of ‑ ‑ ‑

KIEFEL J:   Perhaps it would be helpful to identify the point at which the trial process commences with charge?

MR GAME:   We say yes, your Honour. 

CRENNAN J:   We certainly have pending proceedings from the point of view of contempt the moment the charge is laid.

MR GAME:   We have pending proceedings and you have in this case an acceptance – the case has gone on so long with subject matters changed but anyway you have acceptance by the New South Wales Crime Commission that there is an overlap of subject matter between that which they wish to question on and the content of the subject of the criminal charges.  So you do have that as an accepted fact.

FRENCH CJ: You spoke of reading down section 31D and if one were to do that one would have to look at the text and see what constructional choices are available, but I am just wondering whether one does not also look at the purpose for which the power under 31D is exercised, and obviously it is ancillary to confiscation or the making of a confiscation order. Query whether on a purposive approach there is room for consideration of – or the exclusion, if you like, of an application which would relate to somebody actually facing pending charges or undergoing trial or is it textual?

MR GAME:   Your Honour, yes, but we started out this argument at the other end of the spectrum which was we started out saying that the judgment of Justice Basten has effectively precluded, particularly by its construction of section 63, consideration of fair trial considerations.

FRENCH CJ:   You are saying he has narrowed the discretion too much?

MR GAME:   He has narrowed the discretion down so that there is effectively no discretion to have regard to those factors.  That is where we say the error occurs.  Now an argument is being developed that you read it down such that you cannot be examined about the subject matter of those absent express terms that permit it in the Coco sense.  But the thing about section 31 ‑ ‑ ‑

HAYNE J:   Daniels was not a case about reading down.  There is no question of reading down.  It is whether absent clear words the section reaches.  That is radically different from any notion of reading down. 

MR GAME:   Now, can I just say in answer to your Honour the Chief Justice’s question, section 31D is informed by the fact that the content of the examination is ancillary to an application for confiscation. Now, the confiscation can extend to assets not yet known about, but otherwise the confiscation covers the subject matter of the properties referred to in the schedule but it could extend beyond that. So it has a – the decision under 31D is clearly a quintessential exercise of judicial power. We would say it brings into and is informed by all of the common law considerations that a court would give in an exercise of that discretion but informed by the objects of the legislation which are confiscation.

In this particular case – I am sorry, can I also add to this that the legislation requires proof of criminal related activity on the balance of probabilities but does not require establishment of any particular crime.  And that is how it works through section - the critical section in this case is section 27 which applies to - section 27 is the section which strikes at the first appellant.  The first appellant is a named party to the proceedings.  Seong Lee is not.  He is the second appellant but he is referred to in the notice of motion for examination.  So the person the subject of the confiscation application under section 27 is Mr Jason Lee, the first appellant.

The content of an examination said to relate to a person’s affairs under section 31D(1)(a) hypothetically can extend to anything, including the serious crime‑related activity in which they engaged. Seong Lee is in a slightly different category because he is another person. There are some facilitative provisions that should be noted in section 54 and those facilitative proceedings actually make admissible evidence from trial and certificate of conviction, but they also make available the transcript of examination in these proceedings which is under section 54(5).

Now, there is a question that is not being raised or determined is, what would the nature of that examination be if ordered, because if this – what in effect is happening is that the plaintiff, who is always the New South Wales Crime Commission, is getting orders to examine the defendant in the proceedings relating to the defendant for confiscation by the defendant – confiscation by the New South Wales Crime Commission who is the plaintiff – in which the Court in effect becomes the administrative faculty through which that takes place.

There is a question that has not really emerged in this litigation but a question would arise as to whether provisions such as the Evidence Act would apply to such an examination, an issue about which there are conflicting authorities in other contexts.  But the important thing here in 31D is that what is happening is that the plaintiff is examining the defendant in the civil proceedings about the defendant’s criminal activities.  So that we would say that express words would be required.

KIEFEL J:   Now, on that question, what does the Act need to say in that regard?  We know that the Act read as a whole says that in relation to the accusatorial process that it abrogates privilege.  What else does it have to say critically in relation to the accusatorial process which it does not say?

MR GAME:   An affected person may be questioned on criminal‑related activity, notwithstanding the fact that ‑ ‑ ‑

KIEFEL J:   Well, does it relate to some fundamental assumptions which might be, on the flip side, described as a freedom or an assumption under which an accused operates, namely that the Crown is to prove the case and the defence is not required to disclose their defence?  Is that what is necessary to be said?

MR GAME:   That is correct.  That is what I have called the extant criminal procedure.

KIEFEL J:   I am trying to get you to identify those aspects of the accusatorial process which are unexpressed or insufficiently identified in this Act, so that it may be said that the process has been so altered that questions of trial process are no longer either to be considered as a discretion or, under the Daniels question, fall within the power or outside it.

MR GAME:   Well, the words I offered up a moment ago might express that. If section 13A was framed in different terms you might end up at that conclusion, but section 13A speaks only to some quite limited aspects of the accusatorial process.

KIEFEL J:   Of the trial process, yes, quite so.

MR GAME:   This section 13A, again, it is in the context of a piece of legislation which has got nothing to do with criminal procedure, that is to say, the objects of this Act are not concerned by their very terms. Section 13A says – it abrogates the privilege and then in subsection (3) it has got the double negative, not inadmissible by reason of – so it is not necessary permissive, but it says nothing to all the other aspects of the criminal procedure like possession for the purposes of preparing cross‑examination, possession for the purposes of understanding the defence case, possession of the purposes of making other investigations. Those types of – all of the things involved with knowledge of what the defendant says about their responsibility for the offence, including whether or not they are guilty of the offence, that is to say forcing them ‑ ‑ ‑

KIEFEL J:   Well, as you say, to establish guilt itself, these are some of the matters to which Chief Justice Mason referred in Hamilton v Oades 166 CLR 486 at 498 to 499. His Honour’s judgment is relied upon very much in the Court of Appeal in this case in relation to the earlier aspects of his Honour’s judgment, which is to refer to how much in the way the legislation carves out some privileges and rights. But at 498 and 499, his Honour was talking about the retention of power by the court in relation to trial process, in particular at about point 8, the court retaining its power to ensure that the examinee was not compelled to “disclose defences”, “establish guilt”, and over at the top of page 499:

not to permit a particular question to be asked which would prejudice the examinee’s fair trial –

which almost stands in contrast to what his Honour has earlier said, but just focusing upon those two passages, his Honour seems to be acknowledging that there are other aspects of the trial process and they demand protection.  That the statute does not extend that far, critically for your purposes I would have thought.

MR GAME:   Yes, that is the point picked up and made in De Vonk, which your Honours may be familiar with, where the point is made that the fact that the procedure is permitted by provisions – in that case, in the Tax Administration Act – that enabled disclosure in some cases but not others – for tax offences, but not for other offences – the fact that the procedure was permitted said nothing about whether or not it should in the exercise of the court’s discretion ordering it to have regard to those considerations, so that they are two entirely separate questions.  Importantly, Hamilton v Oades does not seek to overturn the underlying ideas in Hammond.

HAYNE J:   Can I just stay for a moment on Hamilton v Oades, and the passage to which Justice Kiefel referred at 499:

permit a particular question to be asked which would prejudice the examinee’s fair trial –

It may be necessary to unpack what is meant in this context by “fair trial”, and at least for the moment, it seems to me an available point of view that “fair trial” is one identified, even perhaps defined as, an accusatorial trial in which at no point before plea is required is the accused required to make any answer or explanation, whether to the Executive or any other person, for example, his or her lawyers ‑ ‑ ‑

And, the only answer that is ever called on at trial is entry of a plea which if the plea entered is not guilty permits the accused person to test the evidence given in support of the prosecution.  Now, underlying what Chief Justice Mason says in Hamilton v Oades, there is a premise about the content of fair trial and at some point we have got to unpack that.  I do not think it is unpacked sufficiently by saying it is all about whether the evidence can be obtained compulsorily, can be used directly or indirectly, because the assumption is that direct or indirect use is somehow unfair.  Why is it unfair?  It is unfair because it trenches on the accusatorial nature of the process.

MR GAME:   Your Honour, I used the word “extant” before for a reason and the reason is that what your Honour has just said is the criminal procedure that applies in New South Wales.  One can easily draw that out from the criminal procedure legislation and the common law.  It is not a difficult matter to draw out those propositions from the existing criminal procedure as it is informed by the common law and is expressed in the Criminal Procedure Act which brings together the Justices Act and other legislation which for 150 years has defined how crime is established and when a person is called on to answer and indictments legislation and the like and all of the things that are fed into criminal procedures. 

So, that proposition that your Honour just put to me applies across the board to people who are brought to trial.  So the – I am digressing one little bit, but what Chief Justice Gibbs was talking about in Hammond, we say, is that, not direct or indirect use but the mere fact of disclosing whether he is guilty or not guilty and what his defence is if it exists.  That is the entrenchment on the procedure. 

GAGELER J:   It is disclosing to whom?

MR GAME:   To the people who questioned, in the case of Hammond to the Royal Commissioner.

CRENNAN J:   Well, does it matter that in that case the transcripts were to go to the prosecution and there was no derivative use immunity or are you expressing a wider proposition?

MR GAME:   Your Honour, in that case, that is put against us based on what Mr Ryan said in reply and what appears in a part of the judgment, but it forms no part of the critical passage in Chief Justice Gibb’s judgment which was joined in by two other judges.  So that is a speculative idea and in subsequent cases that passage in Hammond has not been construed in the way in which it is put in this case, and I have in mind both De Vonk and OK.  I appreciate that your Honours have already heard argument in another case about these very cases.  Sorry, your Honour Justice Bell was going to ask?

BELL J:   Just to take up with you whether the prejudice in the passage in Hammond in the judgment of the Chief Justice which is at (1982) 152 CLR 188 at 198 where he observes that notwithstanding an examination in private, and notwithstanding that the answers may not be used at the trial, the fact that the plaintiff has been examined in detail as to the circumstances of the alleged offence is very likely to prejudice him in his defence. On a view, that prejudice exists in – when one comes back to the matters that Justice Hayne was taking up with you – in the circumstance that having been required to give an account he is no longer free at his trial to have his lawyer test the prosecution case.

MR GAME:   Quite.  So, whether or not anybody in the prosecution knows about the case, once he has said in his examination “I am guilty”, in effect, he is a goner because – so, yes, at that moment the die is – so long as he has lawyers applying their duty – the die is forever cast against that defendant, including their plea to the offence in question.

It would be specious to think that somehow or another you could devise a way of going around that particular outcome.  The defining thing is in fact it becomes the plea itself not the position by the prosecution of the material.  In fact, it may not even – but what Chief Justice – and we say that two, at least - Justice Deane actually went further but at least two judges actually agreed with Chief Justice Gibbs.  Just while I am dealing with it, Sorby is not in any sense to be seen as overturning Hammond.  There is no need to go into the case but for reasons involving the provisions under consideration there and the express acceptance by Chief Justice Gibbs in Sorby that the issue in Hammond was addressed by the legislation and by the plurality that contempt and all of those considerations were saved.

That passage, we say, stands good for the proposition that it is the disclosing in itself which is the fundamental or basal vice.  There are others and others that we say are left open by the limited protections given by 13A.

If I come back to the judgment, in relation to the first proposition in 4A, we see in Justice Basten’s judgment at the top of page 121, in the first sentence at the top of 121, that Hammond does not lend itself to “extraction of principle”. The point we make is that if that is a starting point, then you have missed the critical idea at page 198 of the judgment, which is that which has just been exposed and which is made clear – I will not take you to the case, but in the passage in De Vonk that we referred to and in the passage in OK.  So we say that is the first identifiable error.

Now, the second relates to Hamilton v Oades and has to be drawn out from different parts of the judgment, but if one starts in the judgment of Justice Basten at paragraph 33, it is the beginning of a discussion in which is said that in effect Hamilton v Oades governs the position.  Now, I have to confess to not having paid sufficient attention to the passage in Hamilton v Oades to which my attention was drawn a little bit earlier today, so the attack on Hamilton v Oades again in the submissions has been a little bit differently framed. But if you would follow this submission through at 33 following through, then one finds by the time one gets to paragraph 45 and then the very last sentence:

adjournment pending completion of the criminal proceedings was not an order of the kind permitted –

Then section 63 feeds into that, so what is being said there is that the proper construction of Hamilton v Oades, taken with section 63, means that there can be no other order but that the examination proceed. The same is reflected in the criticism of the reasoning of the primary judge at page 133 of the appeal book at paragraph 55. We have dealt in our written submissions a good deal with Hamilton v Oades, but there are a few points I wanted to just draw out about the regime under consideration in Hamilton v Oades and why Hamilton v Oades is quite distinguishable from this situation.  I made the point before that Hamilton v Oades did not – what was not involved was the challenge to the exercise of judicial power involved in the making of the order in the first place.

The third point we make under that is that there must be an examination by an external administrator and I have in mind, again it has not been drawn out in the case – that in a case called Highstoke v Hayes your Honour the Chief Justice held that there had to be an order for an external administrator in place before it could be constitutionally supported because it was not an exercise of judicial power.  Again, in the context of this argument, that just is really made to draw out the importance of the discretion in 31D and the different nature of the history of examination of officers of corporations coming, as it does, from the law of bankruptcy.

CRENNAN J:   One thing about Hamilton v Oades, which I feel bound to mention though, is that if you look at 494, about a midpoint of the page, it does seem that the Court of Appeal was moved to accept something very like the argument that is being put now in the context of 31D.

MR GAME:   Which page?

CRENNAN J:   Page 494, about point 5 - well it actually starts at 493 where his Honour the Chief Justice is describing what the Court of Appeal had done.  It had granted relief, described as being within its “inherent power to control” the proceedings and avoid “the risk of injustice being caused” by the examination in the context of a charge being laid.  I was just asking you to factor into your distinction of Hamilton v Oades that what was rejected by the majority, in this Court anyway, was the approach that had been taken by the Court of Appeal. I was making the point to you that that can be elicited at 494, point 4 or thereabouts, and it appears very close to the argument which is now being put.

MR GAME:   Yes.

CRENNAN J:   I just wanted to give you the opportunity to deal with it.

MR GAME:   I understand, but that passage does not seem to sit squarely with the passage that is later in his Honour’s judgment, to which the Court referred a little time ago relating to questioning in relation to the subject matter of charges.

KEANE J:   Unless the notion of a fair trial that Chief Justice Mason was referring to is not the absolute notion that any loss of forensic advantage means that you do not have a fair trial.

MR GAME:   No, understood, your Honour.  We have made this point - this is maybe not answering your Honour Justice Keane’s question, but we have made this point in the submissions that this case does not appear to be about qualifying the content of the fair trial because of the nature of this legislation.  So you do not get into the deeper questions in cases like Nicholas and Bass v Permanent Trustee as to the extent to which you can do so because, as I have said before, that system is extant in relation to all defendants in the criminal system.  This is a, shall I say – would be an entirely side wind impingement on that which exists.  So it does not entirely answer your Honour’s question, but that is the response that we do make.

Can I just come back to the issues about Hamilton v Oades?  The officers who are examined by external administrators, whether they be receivers or liquidators, the incorporation is – there is a passage actually referred to in Saraceni v Jones which we have provided to the Court this morning which says that incorporation is a privilege and part of the quid pro quo is the obligations that fall on officers and the exposure to special procedures.  That is that passage at 229 in the judgment of Justice McLure.  It is just that passage at 229 that I refer your Honours. 

So you become a company director.  You are, shall I say, signing up to the obligations that fall with the fact that what is a legal fiction has been given special privileges in the way in which it operates in the commercial world and at a point at which an external administrator, that is to say, the company’s affairs require external administration then you are exposed in a different way – a quite different way and are not analogous to the position of an offender who has been charged with – not saying offender, offender has been charged with a series of major criminal offences and is the subject of proceeds ‑ ‑ ‑

KEANE J:   But what special privilege does an individual who is bankrupt have – who has for hundreds of years been subject to the same sort of examinations, the same sort of perils that are involved in the section 541 examination discussed in Hamilton v Oades?

MR GAME:   Actually, I had not thought of it that way.  What has happened is that the bankruptcy procedures have been carried over to the examination of officers.  But that is not to say, we would submit, that the underpinning ideas in cases such as Hamilton v Oades are the special position in which the company stands, notwithstanding the history from – I do say, your Honour, when a person is an officer of a corporation, ultimately they stand in quite a different position than a bankrupt because they have signed up to all of the director’s duties including fiduciary duties that exist under corporations law and to the extent that equity feeds into those duties but, in our current context, best expressed in provisions such as 181 of the Corporations Act. 

That is a quite distinct regime that has got very little analogy to that which is under consideration here.  But coming back to this case, our point is that Hamilton v Oades is not going to take you the distance in terms of how you construe this legislation and it does not provide what is said to be the indistinguishable template that Justice Basten and Justice Meagher both put on it and all of both the respondent and the interveners place on Hamilton v Oades.

KIEFEL J:   You are talking about the different statutory context and its historical background?

MR GAME:   That is right.

KIEFEL J:   But there are aspects of what Chief Justice Mason said in Hamilton v Oades that must be taken into account, in particular – and not the least because I think Justice Basten referred to the process of implication which might be employed in determining whether or not something as an intention has been manifest.  That is derived, I think, from Hamilton v Oades at page 495.

MR GAME:   Your Honour, can I just take you to page 492, because in subsection (2), there are express words:

has been, or may have been, guilty of fraud, negligence, default –

and so forth.  It is not necessarily drawn out in the judgments, but the section has a different content to it than 31D does in the content under consideration in the Proceeds Recovery Act.

HAYNE J:   The question immediately under 31D is what is the ambit to be given to the words “concerning the affairs of the affected person”?  Those words are general enough to encompass, I would have thought, whether the affected person committed the offence of which he stands charged.  The immediate question is, in construing those words, (a) what principle, (b) if there is a principle of the kind we have been discussing, what is the consequence of its application?  In particular, are the words “concerning the affairs of the affected person”, general in their reach, to be read as extending to concerning the subject matter of the offence with which the person stands charged but for which he has not been tried?  Hamilton v Oades, as you say, different statute, much more precise.

MR GAME:   I am not sure how far this argument could be pressed, but can I put the very generality of the words tends to support the idea that you would need the express words to actually deal with the subject of questioning on the subject of extant charges ‑ ‑ ‑

GAGELER J:   Why?  What principle of construction ‑ ‑ ‑

MR GAME:   It may seem counterintuitive, your Honour, but the generality of the person’s affairs has a connotation of looked at by itself anything, so that it is ‑ ‑ ‑

GAGELER J:   Well, it would have to be by reference to the subject matter, scope and purposes of the Act, would it not?

MR GAME:   True, yes, but anything concerned with both their financial affairs and the commission of any serious criminal activity, on the face of it, because that is a fact to be established.  But if you just imagine the examination in the witness box, New South Wales Crime Commission asks questions designed to establish the commission of offences, which are the offences charged, because that is what it wishes to prove in the civil penalty procedure.

But what we would say is that if the reach of the legislation was to enable that, then the generality of the words rather suggests that the legislature has not turned its attention to the subject.  It rather suggests - so that the principle of interpretation requiring express language would then have work to do.

GAGELER J:   Express language to do what precisely?

MR GAME:   Express language to permit questioning on the content of the charged criminal conduct.

CRENNAN J:   Well, how would you factor in the concession that you have to read the section subject to the law of contempt?  Would not the very question you posed be precluded, that is, questioning designed to elicit guilt?

MR GAME:   Yes, that is true.  I will get into trouble with Justice Hayne - I think that is not the first time and not the last – but that is a reading down exercise to exclude questions directed to contempt and the subject matter is so close if you apply Hammond. That is why I was at pains to emphasise that section 13A does not do the work that – it has been seen to be doing far more work than it does. But if you had built up a big enough regime around 13A, then you might arrive at the position that you do have the express words that have excluded it and have excluded contempt, but that position has not arrived; that is our case. So that is the second – so going back to the written outline, I have dealt with the Hammond issue and Hamilton v Oades.

Then the third proposition really has already been developed, but at paragraph 42, page 127, bottom of the page, Justice Basten thought that critical were the two further provisions, and I have developed this argument. Section 13A, along with 63, are given an importance which they do not possess, and that is the argument I have drawn out already about 13A. That is the third step of the argument.

Then the fourth step of the argument is to pick up that which comes from paragraph 47, which is pretty much where I began, which is that section 63 is just reflective of the common law. It is not an inexorable prioritisation of the examination. If it was then a constitutional issue really would arise because it would be forcing courts to prioritise one case over another and to ignore potential abuses.

So if 47 stands then we say that that is not what section 63 means, but we say at that point you really would have a serious issue about whether Parliament could prioritise the civil penalty proceedings, including the examination, including examination on the offence, which is over the criminal proceedings.

As we have said in the outline we would agree with the Commonwealth that that debate, if it exists, is a debate best conducted in the context of section 71 of the Constitution and Chapter III itself, rather than focusing on what really becomes no more than the mechanism by which it is brought in through Kable because one is in Chapter III in that context and the distinction, it makes no difference whether or not it is a federal piece of legislation or a State piece of legislation in that context.  So that is how we would develop that argument if drawn into it.

GAGELER J: Mr Game, in relation to section 63, at page 115 of the appeal book in paragraph 9, the now President of the Court of Appeal raised a question about whether an order, or the execution of an order, under section 31D was a proceeding within the meaning of section 63. Do you say anything about that?

MR GAME:   Could your Honour give me that page again?

GAGELER J:   Paragraph 9 at page 115.

MR GAME:   Well, we would accept that examination falls within the purview of section 63. But we put some weight on the last sentence of paragraph 9 as demonstrating error. Now, can I just - the context of what I have just been saying and going back to an issue that your Honour Justice Crennan raised with me, if you could just look at page 131 and paragraph 49, it seems to be accepted in paragraph 49 that the legislation is permitting a contempt, and similarly at 56.

KEANE J:   Is contempt established where there is a possibility of adverse consequences or is something more required to establish contempt?

MR GAME:   Well, my answer to that question is that when Chief Justice Gibbs is talking about a risk of interference in that passage that we have been to more than once, I think it was at page 198, he is talking about the mere disclosing of whether or not the person - not whether or not there is going to be derivative use, not whether or not some other thing will flow from it, whether or not the prosecutor can use it, he is not talking about that, he is talking about being forced to disclose guilt or not guilt and what the nature of the person’s defence if not guilt.  That is what we say is meant by it.

CRENNAN J:   The phrase, though, is “real risk” as distinct from “possibility”.

MR GAME:   Yes, no, I know but Chief Justice Gibbs uses the language or “real risk” himself and then there – sorry.

CRENNAN J:   That would be accepted – I know on one occasion Chief Justice Mason, I think, spoke in terms of substantial risk but I think it is fair to say, generally speaking, the real risk would be the test for a threatened contempt, whether it called for some sort of injunctive relief because some risks might trivial or whatever.  I mean, I am just trying to identify a distinction which I think Justice Keane was addressing you to between a possibility of a risk or even a risk as distinct from a real risk.

MR GAME:   There are two things.  One is, we submit, that what Chief Justice Gibbs was talking about when he spoke about “real risk” was the disclosure itself but what we also say - and it is a different part of our argument - that the discretion in 31D, if you consider this as a House v The King exercise, does not require the examinee to establish to any particular standard and it is both the respondent and all of the interveners say that there is an onus on us to establish a real risk and they mean “real risk” in a different sense than Chief Justice Gibbs is talking about. 

They mean “real risk” in the sense that there may be some collateral but unauthorised use, but there is another step to the argument which is this, that Justice Basten is saying that these uses are authorised so the Act is authorising the use.  So that when he is talking about risk he is talking about something different again, he is talking about a risk of an unauthorised, illegal or different.  That is reflected in that passage I took you to before when he said it is more to the point to ask about what their lawful uses are.

HAYNE J:   Well, is the species of contempt with which we are concerned that species described as interference with the due administration of justice?

MR GAME:   That is right.

HAYNE J:   The question then includes – I do not know that it becomes – the question includes what is the interference.  Relevantly, is interference constituted only by direct or indirect use or is there interference, as I understand your argument to be, constituted by requiring answer?

MR GAME:   That is right.  We say the first.

HAYNE J:   There is a field for debate.

MR GAME:   We say the – sorry, we say what actually was the latter that your Honour just put to me which is – but, and I think I have said this more than once, but we say that 47, properly construed, excludes from consideration all the species of risk at the point of the exercise of the 31D discretion.

KIEFEL J:   Is another aspect of the consideration of the contempt providing an advantage to the prosecution which the prosecution would not, in the normal trial process, have?

MR GAME:   Yes, and sorry – and which the prosecution has in respect of this defendant but discriminatory in the sense that not in respect of all of the rest of the defendants in the criminal justice system so that you actually have a separate – you have a crime – you would be likely to have a Criminal Procedure Act for people caught within that particular regime so that you would actually have two tracks of criminal procedure.  In the same court ‑ ‑ ‑

KIEFEL J:   Well, that makes it a subset of the due administration – it perhaps explains better the due administration of justice description. 

MR GAME:   Yes, but it would be like saying that you have, to put it in a geographical sense, it will be like having a disclosure requirements for people whose cases were going to be heard in the Lismore District Court but not in the Goulburn District Court.  That is to say you would actually have different criminal procedures under the system.

HAYNE J:   But the advantage which I understand you to say the prosecution has is the advantage that the defendant is thereafter constrained in the manner of conduct of his or her defence and it is not to the point, I think your argument has to say, that it is not to the point whether the prosecution is aware of the nature or limits of that constraint, the fact of constraint is what matters.  Again, that is a field for debate.

GAGELER J:   Can you explain to me how the constraint arises?

MR GAME:   Yes, your Honour, because if you have lawyers and you have admitted the offence or if you have had lawyers and you have made admission – say denied it but made some admissions, you were forever constrained in terms of how you conduct your case, so long as you have lawyers representing you, including pleading not guilty.  You also, apart from those, there would be a perjury trap if you, at any point, took a position contrary to the position expressed in your – apart from the first point I made, it would be practically completely unfeasible for a person to conduct any sort of case represented by lawyers other than that which is consistent with either the admission or the partial denial that was made in the course of the examination. 

FRENCH CJ:   Within the range of the – putting to one side for a moment the ambit of power argument, how do you characterise the consideration of the effect of the examination on these questions in relation to pending trial?  Is it a mandatory relevant consideration or something which the judge asked to make the order entitled to take into account?

MR GAME:   At the least obliged to have regard to the risks.  So, in the sense that the exercise of the discretion under 31D ‑ ‑ ‑

FRENCH CJ:   Once it becomes a mandatory relevant consideration it starts to approach a constraint on power, does it not?  It is a bit hard to find the gap between the two.

MR GAME:   Well, we would say not, your Honour, because section 31D is informed by everything in the Act and all of the common law that feeds into – and the surrounding criminal procedures. So if it was an administrative law case it would be a consideration in the sense of a consideration to which a court would be required to have regard. We would not see that as being constraining the discretion but informing it.

Now, there was a question about whether or not it could be said that there were other considerations such as the possibility that an examiner would make an order prohibiting, and I have already dealt with paragraph 62.  But similarly paragraph 72, when you get to that point, what is being said is that in terms of this proposed idea of non‑publication orders, which is not really pertinent when you are talking about the plaintiff being the investigator, but in any case, that it has already been determined by the legislation that that which has happened is permitted.  So that if you turned up with paragraph 72 to the registrar who heard the examination there would be nothing to restrain in terms of publication.

CRENNAN J:   This is where I think Justice Meagher does have a different approach, which I think can be discerned in paragraph 99 on page 147, where his Honour deals with the derivative use point, and over the page at 101, and, as I said, the last sentence of paragraph 100, it seems to me that his Honour takes the view that the legislation works this way, that there is a risk or a possibility of a risk, but not necessarily a real risk in terms of the need to exercise the discretion at the 31D stage, but he seems to accept that during the course of the examination the Court has the power to control and supervise the examination, and it seems to me anyway, he seems to go so far as suggesting that it would be possible to guard against derivative use of such a sort which might give the prosecution an unfair advantage in criminal proceedings.  So, it seems to be a different approach from that of Justice Basten’s in terms of whether or not the scheme here authorises a contempt of court.

MR GAME:   Yes.  Can I make a couple of points about that?  First, because of his Honour’s acceptance that, as it were, Hamilton v Oades applied, his Honour has put out of play what has been discussed as the risk identified in Hammond, which is of disclosure of your defence itself.  So that has fallen out of place, so it would be some other risk, but ‑ ‑ ‑

CRENNAN J:   Well, no, presumably that is a risk that could be covered by an order made by the court precluding questioning on that topic.

MR GAME:   Well, that may be so but, your Honour, you have still got the mandated inquiry by virtue of what his Honour says in paragraph 98 and then you have got at paragraph 103 his Honour agrees with that which Justice Basten said about the exercise of discretion which is touched with the very errors that I have just been identifying, and if you go back to Justice Basten ‑ ‑ ‑

CRENNAN J:   But it is a sort of a timing issue.  In other words, accepting the force in a great deal of what you say about examination designed to elicit guilt or to disclose a defence, and so on.  In a sense, that is something that might be dealt with proleptically if there is real risk of contempt in the way it was dealt with in Hammond.  Then when you look at the Hamilton v Oades type of scheme, two of the judges – I think the Chief Justice and also Justice Dawson – said about the Court of Appeal, not sure why they wanted to go the contempt route because they have got the abuse of process route under the court’s powers to supervise.

I am not ignoring your argument which I know is that just examination per se on the subject matter of the offences raises the issue raised at the end of Justice Gibbs’ passage with which everybody is very familiar, but raising with you this timing issue that on some statutory schemes you do have a weighing of some public interest against the interest of the individual and I dare say you accept that that is what these statutory schemes are attempting to do. 

So, in relation to that weighing, there may be certain contexts in which the only course to be taken is the Hammond course and there may be other statutory schemes and they are all different in terms of whether there is a use immunity and a derivative use immunity or whether there is one but not the other and all those sorts of things, whether the same problems can be addressed – because they are, as you say, very serious problems – through the court’s supervision.

MR GAME:   Well, I understand that there may be a point of difference in respect of section 62, but the reasoning of the court is really the reasoning of Justice Basten and when you come to the question of whether or not the judge was in error, which is at page 133, paragraphs 55 and 56, it is based on two things.

So 13, really, is what Justice Basten called the critical things, 13A(2) and 63.  So that talking about potential interference precluded judicial interference.  So that when it comes to the question of the scope of a section such as 62, that is not really – the thing that is driving the error is the misconstruction of 13A(2) and 63 as they feed into 31D.  What we do say is that in terms of your Honour the Chief Justice’s question about whether something is a mandatory consideration and precluding whether or not that had effect of constraining discretion.

For the purposes of our argument on House v The King, at the very least, it is a permissible consideration. Justice Basten is excluding, in our submission, that consideration and that is the way we began by putting the argument and that is the way we have developed it in the written submissions.  Those are the submissions we put about the errors that are disclosed in the judgments. 

We say it is not saved by – which Justice Meagher says at paragraph 99 - in that once the errors identified have fallen away then what you have is a House v The King exercise of discretion by Justice Hulme made in the context of a trial that was taking place at the very time in which the examination – in which he delivered his judgment, so that the appropriate order would be to quash the order of the Court of Appeal and dismiss the appeal to that court.

Can I say this, that section 31D is ambulatory. It says, then, or at some later time, or words like. That is to say, there is nothing to stop the Crime Commission making another application when the trials are completed. No final rights are determined by the decision of this Court in the sense that there is nothing to stop the Crime Commission making another application in the light of changed circumstances.

FRENCH CJ:   Can I just come back for a moment to this question of the connection between or, if you like, difference between a limit on the power and a freedom or requirement to consider the pendency of criminal charges or current trial in determining whether or not to make an order under 31D?

On the basis, as you put it, there is a discretion which entitled a judge considering the application under 31D to take into account the currency of the trial on matters which might be the subject of the examination, what is the basis upon which the judge actually exercises or takes that matter into account in exercising the discretion at that stage?  What kind of discrimen can be applied to say, this is all right and this is not, given that he is not into being told precisely what questions are going to be asked and so forth?

MR SEXTON:   Well, there is a number of answers to that, which is why I started with that proposition that the notion that if one were to take the view that simply to ask questions that might touch upon the subject matter of pending criminal charges, if one were to say that that itself raises a problem, then, as I say, that may perhaps give rise to a constitutional – the Chief Justice was putting it on the grounds of discretion, but your Honour has really gone back to that first point. 

Chief Justice Gibbs starts off, in that paragraph talks about the circumstances of this case.  That is why I say it is an executive inquiry, a situation where he said that the questions were designed to establish that Mr Hammond was guilty of the offences with which he was charged.  I mean, one short answer is to say that really perhaps those statements, if they were taken unvarnished, could not stand with the later decision of Hamilton v Oades.

CRENNAN J:   Well, I wonder about that, because if one goes in Hamilton v Oades to Justice Toohey’s judgment at 515, he adheres to the view that he had expressed earlier in the Federal Court that the basis for restraining the Commissioner in Hammond:

lay in the fact that if the plaintiff were required to answer questions designed to establish that he was guilty of the offence with which he had been charged, there would be the real risk –

Well, now, it a little difficult to define exactly what is meant by questions designed to establish one as being guilty, but if one were to take a person charged with a money‑laundering offence and contemplate that they might be examined about the source of supply of the cash that was found in their home, I suppose one categorisation of that might be questions designed to establish guilt.

MR SEXTON:   Well, it would not be designed to establish guilt, for the reasons I think that Mr Temby gave, but they certainly might deal with the same broad subject matter.

CRENNAN J:   Have that tendency.

MR SEXTON:   That is right, which is why I say that one answer is to say that it is implicit in Hamilton v Oades that per se those kinds of questions are not barred.

HAYNE J:   Well, I wonder whether that is right, Mr Solicitor.  We see repeated reference in the reasons of the three justices forming the majority in Hamilton v Oades to the provisions of 541 and the way in which 541 was structured, do we not?  Can I just take you to 541 which is set out in the reasons of the Chief Justice?

The object I have in mind is to have you ultimately compare 541 with the legislation with which we are concerned, but let us begin with 541.  It was predicated, was it not, if I can eventually get the provision before me, on it appearing that a person having two characteristics?  One, having taken part in the management or otherwise being concerned in affairs of a corporation, see 541(2)(a) at page 492 of the report of Hamilton, is that right?  That is one characteristic.  And second, that that person has been or may have been, in effect, guilty of wrongdoing with respect to the corporation, is that right?

A possible understanding of Hamilton v Oades is that the legislation expressly is predicated upon examination of a person who has been, or appears to have been guilty of misconduct, and it is perhaps then understandable that the court says in face of that, the provision that you can examine that person about the misconduct, whether or not charged – and those charges are pending – follows.  What is the comparison with this legislation?  If we go to 31D, the comparison is, is it not, with an application made for a confiscation order, and the examination relevantly would be an examination of the affected person, would it?  Is that right?

MR SEXTON:   Yes, your Honour.

HAYNE J:   And the affected person is the person whose asset or interest in an asset is at risk of adverse order, is that right?

MR SEXTON:   Yes.

HAYNE J:   See, I think, 31D(4).   But because this is not conviction based assets seizure legislation, the condition for seizure or forfeiture is not tied, is it, to proof of the wrongdoing which is the subject of pending charges?

MR SEXTON:   Well, except that it is the proceeds of serious crime.

HAYNE J:   But not necessarily the crime that is pending?  You can go back six years, I think, can you not, is that right?

MR SEXTON:   Yes.

HAYNE J:   Does that not present the question that you have the generality which embraces someone who is having assets at risk of forfeiture because six years ago he/she engaged in drug trafficking but is presently standing charged but untried for a money‑laundering offence?

MR SEXTON:   Well, I am not sure, your Honour, that it is not as close a connection as the legislation in Hamilton.  The question in Hamilton – it is in the middle of 491 - was for how long before 1985 you were the director of a particular company.  That was a question that sparked, in a sense, the proceedings.  It does not go to questions of wrongdoing but it obviously might lead ‑ ‑ ‑

HAYNE J:   It was proof of the element of the offence.  Were you a director, if answer yes, that is one, the element of proof which is not needed.

MR SEXTON:   But really in a sense it was that it was that they were related subject matters obviously.  That was the point.  I mean if I just – quite finished, in one sense, with Justice Bell to say that apart from Hamilton v Oades there is, I think, the – we would say the fact that Hammond can be really confined to a different situation, a royal commission, executive inquiry, a case where some assumptions were made about the kind of questions that were going to be asked, about what was going to be done with the materials, so that is why we would say that if necessary it can be confined in a way that Hamilton cannot be.

Your Honours, there is one final thing that I should just say about section 63 which is that none of what we said we would say is affected by section 63 which only provides that the mere fact of existing criminal proceedings is not a ground for a stay of non‑criminal proceedings under the legislation. So the Court still has the discretion that we referred to under section 31D as to whether or not to order the examination in the light of all of the discretionary factors that we have already referred to. Unless there are any other matters, your Honour, those are our submissions on the legislation.

FRENCH CJ:   Yes, thank you, Mr Solicitor.  Solicitor‑General for the Commonwealth, do you wish to get up again?

MR GLEESON:   In the light of the two issues which were clarified by your Honour the Chief Justice’s question and the last sentence of Mr Game’s written outline, which disavows any alternative constitutional question, there is no constitutional question we are facing and we do not seek in that circumstance to then put separate submissions on what is a pure construction question.  Your Honour Justice Kiefel is partly looking at me with surprise perhaps, but your Honour said something ‑ ‑ ‑

KIEFEL J:   It is that time of the afternoon.

MR GLEESON:   Yes.  Your Honour, that is my best understanding of where the matter now stands.  The constitutional question in the notice of appeal is not pressed.  The last sentence of Mr Game’s outline has indicated there is no other question he is raising and so it is as if we were never here and we should resume that position.

FRENCH CJ:   Thank you, Mr Solicitor.  Mr del Villar.

MR DEL VILLAR:   Your Honour, I am much in the same position as the Commonwealth.  Unless your Honours are willing to hear from me in relation to some of these issues raised by Mr Game this morning then I do not propose to do anything more than rely upon my written submissions.

FRENCH CJ:   Yes.  Thank you, Mr del Villar.  Yes, Mr Game.

MR GAME:   If the Court pleases. The three steps in our argument are as were put by your Honour Justice Kiefel to Mr Sexton. The last words that Mr Sexton said before sitting down must mean, we would say, that paragraph 47 of the judgment of Justice Basten is incorrect because that goes quite beyond section 63 having that effect.

KIEFEL J:   Could I just interrupt you?

MR GAME:   Certainly.

KIEFEL J:   About his Honour’s judgment, at paragraph 74 - Mr Temby pointed us to paragraph 74 to show what was outstanding at that time.  Do you agree with what is stated in paragraph 74?

MR GAME:   There were two trials outstanding in respect of two separate money‑laundering trials.  This is a slightly roundabout answer to that question, your Honour, but considerations were different when the case was before Justice Hulme.

KIEFEL J:   Yes.

MR GAME:   So that the way it would work we say is that if we make good our challenge to the way the Court of Criminal Appeal dealt with it then you have just got the House v The King exercise by the judge.

KIEFEL J:   Just as a question of fact though, does paragraph 74 express what was the position when the matter was before Justice Hulme?

MR GAME:   Yes, that is correct.  But can I just pick this up - and it is not necessarily in order, but your Honours are no doubt familiar with it - the last sentence of paragraph 81 of Justice Basten’s judgment undercuts that which comes before it and when pressed, and I mean no criticism of him, but when pressed Mr Temby really could not give criteria for what would occur during the examination itself other than the terms and objects of the Act.  This is important because if you go to Justice Basten’s judgment at 70 to 72 there is nothing there to protect.  That is on the exercise of discretion and Justice Meagher agrees with it.  So the protection of what might happen during the examination is a vista that has no substance in terms of if you get down to the tintacks of what the criteria are from our perspective.

Now, picking up a point about what are described as uses and the bare fact of disclosing the defence, we expanded on what their uses might be beyond 13A in paragraph 52 of our submissions in‑chief and I will not repeat them but it is there and we drew from a case called Seller.  I should draw your Honours’ attention to this.  If you look at our hand up today at paragraph 5c - again, I will not chase it through, but that decision of SD qualifies in important respects what was said by Justice Basten in the judgment at paragraph 62, page 135.

BELL J:   What part of SD were you taking us to?

MR GAME:   The part of SD is particularly at 29 through to 34.  The point of it, your Honour, is this -– what it amounts to is this, that when you look at the objects and functions of the New South Wales Crime Commission under that legislation there is nothing to prevent – in fact, there is an obligation to release and disseminate information obtained under section 13(9). 

What I am saying is that you have to look at the two pieces of legislation together and the reason why you have to look at the two pieces of legislation together is the New South Wales Crime Commission is performing one role as a plaintiff in proceeds and another role as an investigator and that puts it in a very different position than an ordinary litigant.  So what is being chased through in SD is what might be described as the permissible processes with respect to the material finding its way in the hands of the prosecution.

In terms of what your Honour Justice Kiefel put as the first reframed question, the considerations may be serendipitously – we pick them up in - the accusatorial considerations were picked up in paragraphs 62 to 63 of our submissions in‑chief and that really is perhaps directed to the question your Honour Justice Gageler asked me this morning as to what was the content of the principle that needed clear words to do away with it.  When one looks at Daniels which is ‑ ‑ ‑

GAGELER J:   Did you say 62 and 63?

MR GAME:   Of our submissions in‑chief.

GAGELER J:   This is the constitutional part of your submissions?

MR GAME:   Yes, your Honour, but it is addressed to picking up the accusatorial – all I am doing is just by reference to that picking up where one finds the content of the accusatorial system articulated.

GAGELER J:   What part?

MR GAME:   The part referring to EPA particularly, EPA at 501 at paragraph 63 of our submissions but, your Honour, one can find that from both the content of the common law and criminal procedure as it applies across the board in New South Wales and elsewhere.  That is all, your Honour.  If one looks at Daniels 213 CLR 543, and I would just refer to two paragraphs - paragraph 11 in the plurality and paragraph 43 in Justice McHugh’s judgment – we do have general words, we do have important common law principles that are actually reflected in statutory provisions of general application so that we say that our proposition 1 is made good when one applies those principles enunciated in paragraphs 11, and I refer to 43 just because it is the way Justice McHugh expresses it.

We say section 31D is general. All of the provisions are silent. All of the rest of the provisions in the Act are silent on the subject. Section 63 is the high point of the case against us, but once it is recognised that section 63 is only a reference to the fact of the existence of the proceedings it does not take it any further. Now, we say that Hamilton does not overturn Hammond.  We say Hamilton does not qualify Hammond.  We say Sorby does not qualify Hammond and the principle - there is a ratio in Hammond and it stands.  Those are our submissions in reply, if the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Game.  The Court will reserve its decision.  The Court adjourns until 9.45 tomorrow for pronouncement of orders.

AT 3.17 PM THE MATTER WAS ADJOURNED