Lee v The Queen; Lee v The Queen

[2014] HCATrans 69

Redacted Transcript

[2014] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S313 of 2013

B e t w e e n -

DO YOUNG (AKA JASON) LEE

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S314 of 2013

B e t w e e n -

SEONG WON LEE

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 APRIL 2014, AT 10.17 AM

Copyright in the High Court of Australia

____________________

MR T.A. GAME, SC:   I appear with MR S.S. PARARAJASINGHAM, for Seong Lee, if the Court pleases, the second appellant.  (instructed by Nyman Gibson Stewart)

MR M. THANGARAJ, SC:   Your Honours, I appear for Mr Jason Lee, with MS G.A. BASHIR.  (instructed by Nyman Gibson Stewart)

MS N.J. ADAMS, SC:   May it please the Court, I appear for the respondent in both appeals with my learned friends, MS J.E. DAVIDSON and MS H.R. ROBERTS.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   You are leading off, Mr Game?

MR GAME:   If it is acceptable to the Court, I will go first.

FRENCH CJ:   Yes.  I should say, Mr Game, it would be of assistance to us at a convenient stage, and hopefully relatively early in your address, if you could step us through the factual framework so that we are all clear on who did what, and to whom and when.

MR GAME:   Yes, I should have asked Mr Thangaraj to go first, but I will do my best, your Honour.  Can I just mention first, there is an order made by Justice Gageler on 26 February under section 77RE and 77RF of the Judiciary Act in relation to the contents of the examinations?  I propose to deal with it by speaking obliquely about the contents of the examinations and we have set out the relevant parts in our written submissions, so to the extent possible, I will deal with it by not actually mentioning the specific contents, but it may not be possible to conduct the entire appeal without having to address the orders made by his Honour.

FRENCH CJ:   Yes, all right.  Well, let us deal with that if we get to that problem.

MR GAME:   Yes, certainly.  Now, your Honours have our outline and it does not hold any major advances from the written submissions except if you see on the third page where I develop a little further the argument about how you deal with miscarriage of justice and the proviso in these circumstances.  Now, your Honours ‑ ‑ ‑

FRENCH CJ:   Can I just perhaps – as I understand the sequence in relation to your client, it starts with the Crime Commission reference issued in August 2009.

MR GAME:   Yes.

FRENCH CJ:   There is the execution of a search warrant on 7 December, and then there is the examination of your client on 16 December 2009 before the Crime Commission.

MR GAME:   That is right, yes.  There is a firearms charge but no other charges.

FRENCH CJ:   Yes, okay.  Then the three firearms offences are charged on 7 December and the offence of supply of prohibited drugs that is charged on 17 May 2010, is that right?

MR GAME:   Yes, so the story is that after the arrest on 7 December it was anticipated that there would be drug charges but they had not got a positive result to the examination of the soap powder at that time.

FRENCH CJ:   There was a preliminary indication.

MR GAME:   Yes.  If you look at paragraph 1 of the submissions, there is a reference there to 1135 and that is a reference to a piece – there is no need to go to it but it is a reference to a piece of evidence on appeal of Mr O’Connor who said that they had a strong suspicion about the contents of the boxes at that time.

CRENNAN J:   You do not complain about the search warrant?

MR GAME:   Not at all, your Honour.  No, I am just trying to explain the sequence of events.  We are not complaining about the search warrant.  I am just trying to explain the context within which the examination took place.  So the examination takes place after he has been charged with the firearms offences but the contents of the boxes have been seized, charges have not been laid and they were waiting for results on the testing.  There is a reference there also to a passage in Justice Basten’s judgment at paragraph 154. 

It is fair to say, we would submit, that it was anticipated that there would be drug charges but they had not yet been laid because they had not had the confirmatory evidence.  When my client was questioned, he was not questioned in relation to the firearms.  He was questioned in the New South Wales Crime Commission.  When he was questioned [Transcript redacted].  We have set out the relevant passages in paragraph 10.

FRENCH CJ:   All of which had been previously discovered in the course of the search warrant.

MR GAME:   That is right.

FRENCH CJ:   The search.

MR GAME:   That is correct, your Honour.  But if you think about it ‑ if one thinks about it this way; if he had not taken objection to it, that examination would have been a highly useful document as, say, as a piece of evidence of admissions, because [Transcript redacted]

FRENCH CJ:   The argument is he selects the boxes.

MR GAME:   That is right, yes.  [Transcript redacted]  So there is a reference to another address in another ‑ ‑ ‑

FRENCH CJ:   Can we just finish the time sequence?

MR GAME:   Yes, certainly, your Honour.

FRENCH CJ:   So you have the examination on 16 December and then there is a dissemination of that material to the New South Wales Police in May 2010, I think 4 May?

MR GAME:   That is correct, yes.

FRENCH CJ:   Then there is the charge on 17 May in relation to the supply of prohibited drugs and then the supply of the transcript to the DPP on 2 July 2010.

MR GAME:   Yes.  Incidentally, it may not matter but it emerged in cross‑examination in the Court of Criminal Appeal that the police officers involved in the case had temporary officers as officers of the New South Wales Crime Commission but that was not something that was known – that just emerged in evidence.

KIEFEL J:   I know this does not directly affect your client, but just in relation to matters generally, the statements taken from the witnesses that relate to the documents that were the subject of the requirement that the first appellant produced, the statements and the documents were produced to the DPP with the transcripts, were they not?  I think that appears in the Court of Appeal.

MR GAME:   I believe so, yes, your Honour.  There is a piece of evidence that ‑ ‑ ‑

BELL J:   May I just ask you about your chronology?

MR GAME:   Yes, your Honour.

BELL J:   Page 3 – it relates to the question you just answered.  There is an entry there - July‑September 2010 – that the:

NSWCC officers took statements from various people who had been shown the compelled documents.

MR GAME:   Yes.

BELL J:   You just mentioned before that the police, as I understood it, had a task force assisting the Commission – section 27A of the relevant Act.  I suppose I am asking you ‑ ‑ ‑

MR GAME:   I missed the question in your Honour’s question.

BELL J:   I am sorry.

MR GAME:   No, no, it is my fault.  I am sorry.

BELL J:   I am just checking with you the accuracy of the entry in the chronology in relation to the preparation of the seven statements.  Am I right to understand that they were prepared in house – if I can put it that way – by the Crime Commission, presumably by the seconded police officers who were part of the police task force assisting the Commission.

MR GAME:   Apparently not by seconded officers, but can I say, your Honour, that ‑ ‑ ‑

CRENNAN J:   Well, in‑house officers presumably, not seconded officers.

MR GAME:   Yes.  That is something that I have not focused on because that concerns Jason Lee, but can I just say this, your Honour ‑ ‑ ‑

CRENNAN J:   Yes, perhaps it is not really ‑ ‑ ‑

MR GAME:   ‑ ‑ ‑ that, as I understand it, it was armed with the examination transcript of Jason Lee – or that is the argument that is put – that it was because of what emerged from the examination of Jason Lee that those statements were taken.  That is my understanding of the argument that is put.

CRENNAN J:   Yes.  Well, the compelled documents showed [Transcript redacted]

MR GAME:   That is correct.

CRENNAN J:   And then copies were also found pursuant to the search warrant on 7 December.

MR GAME:   That is correct.

CRENNAN J: Is there any evidence about the basis on which these seven people were shown the documents? I have in mind section 29 of the Crime Commission Act.

MR GAME:   I am going to have to pass on answering that question ‑ ‑ ‑

CRENNAN J:   May we do not go there, or ‑ ‑ ‑

MR GAME:   ‑ ‑ ‑ your Honour, because that is ‑ I have left that entirely to Mr Thangaraj, so my apologies.

CRENNAN J:   Yes, very well.

MR GAME:   I am sorry that I am not being more help, but the factual circumstances relating to my client are much, much simpler than they are in relation to the other appellant, and the parties are much closer in terms of what actually happened and the significance of things.  I am not trying to finesse my way out ‑ ‑ ‑

CRENNAN J:   It is just a little penalty for going first, Mr Game.

MR GAME:   That is right.No, no, your Honour, it is my fault.  Now, I think I am more battle wounded than Mr Thangaraj – scarred I think is the word.  So just looking at paragraph 1 of our outline, and again there is no need to go to it at the moment, but in the very last line there we refer to a paragraph of Justice Basten’s judgment and he said in that paragraph that the contents of our examination were “not directly related” to the charges.  We say that is quite a significant understatement of the significance of the material.  If one is looking then at paragraph 2, when one looks at the dissemination, there was a technical defect in respect of my client but nobody is saying it is of any significance.  When he was examined the Commission ‑ ‑ ‑

FRENCH CJ:   There was no direction.

MR GAME:   There was no direction given but, nevertheless, section 13(9) had to be addressed when the request was made.

FRENCH CJ:   There is a mandate for a direction under section 13(9) ‑ that is 13(9), is there not, under certain circumstances?

MR GAME:   Yes.

CRENNAN J:   It has been conceded, has it not, that there should have been a direction?

MR GAME:   Yes, your Honour, yes.  But the concession is also that in the context of section 13(9) the request was so the prosecution could find out what the defence case was, so it has got more power than just a – it is a fairly poignant kind of request in the sense that it is to do the very thing that, we say, is prohibited.

KIEFEL J:   Could I just step back from the point of dissemination to the DPP to the earlier dissemination to the police?

MR GAME:   Yes, your Honour.

KIEFEL J:   Do you take any issue with that as a proper dissemination?  In the joint chronology it is referred to as a purported approved dissemination.  I know that there are some big questions in relation to section 13(9).  I am not sure how much we need to go into it here but we may need to get some idea of what the issues are.

MR GAME:   Well, we would say that the dissemination should not have taken place to the police either, but that has not been part of the argument.

KIEFEL J:   That is for another day.

MR GAME:   The argument has all focused on the point of dissemination to the DPP.  I understand your Honour’s concern, but we say ‑ ‑ ‑

KIEFEL J:   But does not Justice Basten make something of this?

MR GAME:   Yes, because Justice Basten ultimately says that the prosecution should have everything that ‑ ‑ ‑

KIEFEL J:   And they could get them in any event?  That might diffuse some of the seriousness.

MR GAME:   Yes, your Honour, but our point is that in a situation like this where you have an investigative agency like the Crime Commission having very intrusive powers, but you have provisions like section 13 and the protections in respect of examinations, then one has to be very solicitous of the contents of the examination when you are examining the very people who are likely to be charged.

KIEFEL J:   So how does that affect the Commissioner’s decision whether or not – well, there are two questions under section 13(9):  whether there is power for the Commission to publish to such persons after a direction is made and the second is the circumstances in which it would be proper and that may include questions of notification to allow judicial review, those sorts of issues that we are involved with.  I just do not know how much – I am only alerting you to it because of the approach taken by Justice Basten.  His Honour raised it, but said it was not necessary to go there.

MR GAME:   No, but it may go to the gravity of the breach.  We say that the gravity of the breach was never addressed by his Honour because it is clear from his Honour’s judgment that he thought it was appropriate for the prosecution to have the material.

KIEFEL J:   Well, then, we might have to understand whether or not there is power for the Commission to simply accept after the making of a direction and give it – disseminate it.

MR GAME:   Yes.  Our position is that if you have people in the – I appreciate what his Honour said, but in actual argument there has been no focus on the power to disseminate to the police.  I will have to make that plain to your Honour.  His Honour Justice Basten also thought – I am not quite answering your Honour’s question – that section 13(9) might not even be concerned with dissemination to the prosecution, that it might only be concerned with dissemination to the public and things like that.  But we say that X7 is ‑ ‑ ‑

KIEFEL J:   Yes, large questions were raised, I think you could say.

MR GAME:   We say X7 is firmly against that, and all of the Court in that case made it clear that ‑ ‑ ‑

KIEFEL J:   That it has a protective purpose.

MR GAME:   ‑ ‑ ‑ section 13(9) had a different function.  The judgment in this case would have been a very different judgment if it had been handed down after X7 and so that all of the things that his Honour developed about why there was actually no problem with the prosecution having it would have been looked at through an entirely different set of lenses.  We have taken as our starting point, rightly or wrongly, that the dissemination to the prosecution at least should not have taken place by reason of the failure to address section 13(9) and by reason of the fact that it may have prejudiced the trial for the prosecution to have the material.

FRENCH CJ:   Just to understand the content of the concession so far as it relates to the dissemination of your client’s examination, did it go further than what is reflected at page 2242 of the appeal book paragraph 25 that the release of the transcript had been irregular or did it go to a concession that it was unlawful.  Plainly, in the case of the first appellant it was done contrary to a direction.

MR GAME:   I think it is a distinction without a difference in respect of my client because the dissemination took place with no consideration – well, it was just within 20 minutes or so the Commissioner had said “approved” to a request ‑ ‑ ‑

FRENCH CJ:   Yes, I understand that.

MR GAME:   So, in administrative law terms, that was not a valid exercise of the section 13(9) power.

CRENNAN J:   The concession is a concession that evidence lawfully obtained was improperly or unlawfully disseminated.

MR GAME:   That is correct, but can I just say this?  There is an aspect to this which your Honours should be made aware of which is in volume 5 at 2278, paragraph 124.  Now, what is being said – the concession is, in fact, that the – the concession is set out at paragraph 25 in our submissions ‑ is that the dissemination was unlawful, not merely improper.  Sorry, it is in Jason Lee’s submissions.  At paragraph 124, the point I wanted to draw out is this, it is said at the bottom of the page:

No equivalent order was recorded in the transcript of the hearing with Mr Seong Won Lee, but the Director accepted that the Commission was obliged to make such an order in circumstances where the appellants were to be tried together and the indictment, at the date of the release of the materials, included both a money laundering charge and drug charges.

Well, that is a submission that might be pressed in respect of Jason Lee but it has got no relevance to Seong Lee and, again, it misunderstands the significance of the concession.  So what is being said there is this.  When Judge Solomon severed off the money laundering charges – so the Crown is saying, well, it may have been improper at the point of dissemination but circumstances have changed in respect of Jason Lee, but that submission has got no moment with respect to Seong Lee. 

Again, it is a misunderstanding of the significance of the concession in respect of my client.  The Crown is making no such submission.  They maintain that submission in their submissions in this case in respect of Jason but they make no such submission in respect of Seong.  So, now, in terms of what then – what the concession means is that it was unlawful for the prosecution to be possessed of the material.  They were not in lawful possession.

FRENCH CJ:   When you say it was unlawful for the prosecution to be in possession of material, what do you mean by that?  Do you mean it was in breach of a law?

MR GAME:   No.  I mean that there was no authorisation that warranted – there was no lawful authorisation that warranted their possession.  That is a better way of putting it.  There was no valid authorisation for their possession.

KIEFEL J:   This is on public law grounds, on administrative law grounds.

MR GAME:   Yes, yes.

KIEFEL J:   But there had been no proper consideration to make a decision.

MR GAME:   That is right, and no grounds upon which to ‑ ‑ ‑

KIEFEL J:   So it does not take effect as a decision.

MR GAME:   That is correct.

KIEFEL J:   Is the decision‑maker also tainted with impropriety, knowing what the purpose is?

MR GAME:   Yes.

KIEFEL J:   That also affects the decision?

MR GAME:   Yes.  So, it is an invalid – it is a Bhardwaj invalid exercise of power.  I had developed some administrative law arguments in the Court of Appeal but the Court really put them all to one side and said we do not need to worry about those arguments because of the concession and that is part of his Honour Justice Basten’s judgments. 

But, your Honour, I developed other arguments that, in effect, one person, Mr Bradley, was operating as the management committee, the commission and the committee with delegations to do everything and then in one second authorising himself to do something.  The court put those arguments to one side and said it was not necessary to address them, but we said, in effect, it was a rubber stamp, a rubber stamp by Mr Bradley to himself, in effect.

Now, at trial – and we have said that if we – still in the first block in our submissions – there was some evidence that Mr Watts, the first prosecutor, made ‑ ‑ ‑

KIEFEL J:   Just before you get to the trial ‑ ‑ ‑

MR GAME:   Yes, sorry, your Honour.

KIEFEL J:   We are trying to follow this chronologically.  That is where we are having some difficulty.  In the pre‑trial ‑ ‑ ‑

MR GAME:   I am sorry.  At pre‑trial, yes.

KIEFEL J:   In the pre‑trial discussions – is that what you were going to discuss?

MR GAME:   Yes, your Honour.

KIEFEL J:   Because, speaking for myself, what I am really interested in is when the defence came to know that the prosecution had the transcript.

MR GAME:   The defence was aware – Mr Stewart’s affidavit in the Court of Criminal Appeal says something about this.  The defence were aware, at least by the time of pre‑trial, that the prosecution had the material.  Mr Watts ‑ ‑ ‑

FRENCH CJ:   Was the defence provided with the material as early as October 2010?

BELL J:   The same day, was it not?

MR GAME:   It was provided with the material, yes. 

FRENCH CJ:   Yes.

MR GAME:   Incidentally, the Crime Commission came along seeking orders under section 13(10), but one of the orders they sought was for the prosecution to have the material but the prosecution already had the material and then they sought orders for the defence to have it under section 13(10) of the Act, which as I understand it, occurred at pre‑trial.  Mr Watts was the prosecutor appearing at pre‑trial.  At appeal book pages 30 and 31, which are in volume 1, he speaks about it.  We have set it out in submissions but one sees ‑ ‑ ‑

BELL J:   What page?

MR GAME:   Pages 30 and 31, your Honour.

BELL J:   Thank you.

CRENNAN J:   Just before you go there, at page 17, about line 17, 18, Mr Sutherland has a complaint that a great deal of material has been received:

much of which has been in the possession of the Crime Commission for eons.

MR GAME:   Yes, that is correct.  Mr Sutherland – and he is counsel for Jason Lee ‑ but he is making the point I think that they have been served with a lot of material directly from the Crime Commission, not from the prosecution so that the Crime Commission is kind of acting as a de facto server of Crown material.  But the passage that I was going to refer to is at page 30.  Mr Watts said:

and whilst that evidence isn’t admissible in these proceedings I suppose it gives us a bit of an idea where they might be heading ‑

Then he says something more about it on 31, line 25.  So Mr Watts did not give evidence on the appeal and nor did Ms Garrity, so one does not actually know what they did or did not do with the material except for that which emerges from material in Jason Lee’s case about statements being obtained and the like.

There is one part of Mr Stewart’s affidavit where he says that the reference to [Transcript redacted] was brought about by my client in his examination and that led to a request for the police to go and do a search for results [Transcript redacted], but beyond that it is not known what in respect of my client was done.  The only evidence that the Crown put on, apart from the emails and so forth on the appeal, was the affidavit of Mr Barr.

KIEFEL J:   So at 23 November 2010 the defence of both accused know that the prosecution have the transcript ‑ ‑ ‑

MR GAME:   That is right, your Honour.

KIEFEL J:  ‑ ‑ ‑ and, for later purposes, also the statements with the document?

MR GAME:   I believe so, your Honour.

KIEFEL J:   We are not quite sure about that.

MR GAME:   I will ‑ ‑ ‑

KIEFEL J:   Ask Mr Thangaraj later.

MR GAME:   Yes.  Can I just say though that ‑ ‑ ‑

CRENNAN J:   Then at page 40, just to capture it, you may not want to comment on it, Mr Game.  It is perhaps a question for Mr Jason Lee’s counsel, but Mr Sutherland makes reference to Crime Commission evidence and at about line 38 to 44 or so, he adverts to a defence which Mr Jason Lee may wish to run in relation to, as I understand it, the $1.47 million.

MR GAME:   Yes, that is true.  I am sorry, I cannot comment further on that, your Honour.  But in terms of knowledge by the defence, it was not until this appeal was well advanced and the other Court of Appeal case had been heard, that it was known in the defence camp that the material had been unlawfully provided to the prosecution.  So that state of awareness ‑ so had there been a complaint made, it was not known to the defence that the actual provision was unlawful.

CRENNAN J:   Does prejudice to a fair trial turn on whether it was lawful or unlawful?

MR GAME:   Not necessarily, your Honour, no, but we say that it marks, in terms of the merits of the application, a powerful argument in terms of, shall I say, in an assessment of the gravity of the breach, the gravity of the impropriety ‑ ‑ ‑

KIEFEL J:   Perhaps public policy questions.

MR GAME:   Yes.

KIEFEL J:   Did Justice Basten make something of the fact that no complaint was made during the course of the hearing, so ‑ ‑ ‑

MR GAME:   He said that was fatal, at the very end of his judgment, but he also accepted that no one in the defence camp knew, so the objection would have to have been to the position in ‑ ‑ ‑

KIEFEL J:   But I suppose the point is that even not knowing of the unlawfulness or impropriety, whichever way one looks at it, the defence could have made – you say they could not have made an application for a stay just upon the basis that - without knowing about the impropriety an application for a stay was doomed.  I suppose it would have been.

MR GAME:   Well, it was unlikely to succeed, particularly in the light of the existing authorities and X7 speaks - notwithstanding the fact that the court was divided, X7 speaks in – gives practitioners, shall I say, a very different perspective of the nature of the protection provided by a provision such as section 13(9).  All of this legislation has its origins in the 1984 National Crime Authority Act.  It is not exactly the same, but this section and section 25A and section 30 of the Crime Commission – the Australian Crime Commission - are almost the same.

CRENNAN J:   Would not the fundamental defect argument be available, that is to say, as I understand it, the fundamental defect in the process so that that is the important aspect ‑ ‑ ‑

MR GAME:   That is our argument.

CRENNAN J:   From the point of view of a stay, though?

MR GAME:   Yes, your Honour, that may be so, and we say the ideas behind stay applications should have some unity with the ideas behind the application of section 6, but if that is the case, then it also gives some strength to our position.  It does not detract from the fact that it was not – incidentally, I am diverting, but Mr Sutherland bellyached a lot about the fact that the prosecution had this material.  It is true, he did not make an application for a stay to bring about a situation in which another prosecutor, for instance, was brought on the case ‑ ‑ ‑

KIEFEL J:   Is there some suggestion that Mr Sutherland thought that the prosecution had the material for the purposes of other charges relating to confiscation proceedings?

MR GAME:   That is correct, yes.

KIEFEL J:   I suppose the knowledge for the accused through their counsel of the prosecution having the transcripts does not go just to whether or not they ought to have made an application or done something about it.  It also goes critically, does it not, to the question of choices made by the defence in relation to their defence?

MR GAME:   Yes, your Honour.  We say that actually it works in – once the defence know that the prosecution has the material, then they have to position themselves in relation to that circumstance and if the prosecution can do everything short - as Justice Basten’s judgment really suggests - than actually short of tendering the document, then that is a real and serious exposure.

CRENNAN J:   Would that be a different positioning from the positioning that an accused might feel obliged to do having regard to the accused’s own knowledge of what was said in the compelled testimony?

MR GAME:   Is it different?  No – sorry, it is an additional factor, your Honour, but ‑ ‑ ‑

CRENNAN J:   It is a similar problem.

MR GAME:   Yes.  But, as I say, you have not got just a perjury trap.  You have got the fact that with one little addition, that is to say knowledge of [Transcript redacted] and he is a goner, so that people would say this is an exculpatory record of – but no prosecutor would think about it as an exculpatory record of interview if they understood how proof actually works.

CRENNAN J:   They would not be permitted, would they, to cross‑examine in relation to prior inconsistency in the compelled evidence?

MR GAME:   Well, the answer to that question is no, they would not, but we have referred to a Western Australian first instance case of Bartlett where Justice Heenan has relied on this case really – it is not in our list of authorities but it is just in the reply where he has actually relied on this decision of Justice Basten to prove the exercise of using it for the purposes of preparation of cross‑examination which is one step short of putting it.  But a document in the hand of a prosecutor with prior inconsistent statements is a powerful thing even if you are not saying to the person, “Look at page 3 and now look at page 5”.

FRENCH CJ:   Do you accept that the Act prohibits a prosecutor from cross‑examining on the transcript of a compulsory examination?

MR GAME:   Yes, your Honour.

FRENCH CJ:   And where does that come from?

MR GAME:   I think it is – it is in really the effect of 18B, your Honour.  Again, 18B is not in exactly the same terms but 18B is in similar terms to section 30 that the Court considered in X7.

CRENNAN J:   It is subsection (2), is it not, an immunity from direct use?

MR GAME:   Yes, but admissible in evidence ‑ ‑ ‑

KIEFEL J:   Is there a distinction between ‑ ‑ ‑

MR GAME:   There is a distinction, yes.

KIEFEL J:   I am sorry ‑ between cross‑examining on a document and tendering it to prove an inconsistent statement.

MR GAME:   There is.  So, shall I say, we would argue that it is a prohibition, but you could have an argument about whether that was – it is put against us that Mr Stewart could not have possibly have thought that the material could not be cross‑examined on because it was legally wrong but that is not what Justice Basten says, and nor is it what Justice Heenan says in Bartlett.  So, as I say, whether or not you can actually get to saying “I will put to you the fourth question on page 3”, whether subsection (2) cuts that out, even if it does you have got the cross‑examiner’s question just short of that which is you know the witness gave the evidence and you say, “Well, so you then went with Mr X to such and such and picked up some, did you not?”.  I mean, it is one step short but it is actually an aggressive use of the document even though you are not tendering the document, and even though you might be prevented from tendering it as a prior inconsistent statement ‑ ‑ ‑

FRENCH CJ:   Well, that would seem to fall within the prohibition, too, would it not, correctly?

MR GAME:   Yes, your Honour, yes.

BELL J:   There is the further use that Justice Basten identified of enabling in the taking of a proof from Mr Pak ‑ ‑ ‑

MR GAME:   Yes.

BELL J:    ‑ ‑ ‑alerting Mr Pak to the likely account that your client would give.

MR GAME:   Quite, but there is no material before the court as to what actually happened in the preparation – the prosecution did not put anything before the court in relation to what happened with respect to Ms Garrity, Mr Watts – what happened with the preparation of Mr Pak.  So if we are right about how you work section 6 of the Criminal Appeal Act, then they have not got close to actually exposing what did or did not happen.  Nor, have they got close to exposing whether or not this is a practice because if it is a practice of obtaining this material then arguably it is much more serious if it is something that is done in every ‑ ‑ ‑

KEANE J:   Systemic – if it is systemic.

MR GAME:   Systemic, yes, your Honour.

KEANE J:   Mr Game, having interrupted you, can I just ask you when you say that defence counsel were not aware that the material in the prosecution brief had been obtained unlawfully – I mean, obviously, I am not asking you to speak about what was in their mind – but is the basis of that argument a want of appreciation of the effect of section 13(9)?

MR GAME:   It is a want – I think it is more basic in the sense that there was – that might not be the right word – but they were not aware of the circumstances of the request, namely that the prosecution asked for it so they could know what the defence case was and that it was released as a matter of formality.  So they actually did not know anything about how it came to be in the prosecution brief.

KEANE J:   So they were not aware of those circumstances but in order to appreciate the unlawfulness, as you put it, of the prosecution’s possession of the documents, it would be enough to know that the prosecution had them and to understand the true effect of 13(9).

MR GAME:   It might be, your Honour.  It might be but, as I say, there is a level of hindsight and there is a counsel of perfection being applied to the solicitor that might – and, particularly – it is funny the way these cases seem to come in waves, but X7 and other cases were being litigated later than this case.  So I do not think there was a clear appreciation of the significance of section 13(9) and its protective nature.

KIEFEL J:   It might have been thought that the Commission could release them.

MR GAME:   Yes, your Honour.

KIEFEL J:   Under its own power.

MR GAME:   That is right.  I think that is probably what was thought.

CRENNAN J:   A mistaken conception of the interface between 6(1)(b) or 6(2) maybe, and 13(9) and 29.

MR GAME:   Yes, your Honour.

CRENNAN J:  They all have to be construed harmoniously, I think.

MR GAME:   They do, your Honour.

CRENNAN J:   There are a lot of complexities, I think, in how they would fit together.

MR GAME:   Yes.  The recent decisions of this Court have brought some clarity to that but if one looks at Justice Basten’s judgment, he did not arrive at a position of clarity about these provisions.  In fact, he arrived at a position in which he was saying that there were perplexing questions left to be resolved as to how say section 7 ‑ ‑ ‑

CRENNAN J:   I suppose the concession complicated matters for Justice Basten.  I think he says that in paragraph 123, or thereabouts.

MR GAME:   I think Justice Basten thought the concession should not have been made – any part of the concession should not have been made.

BELL J:   When one looks at 13(9), it imposes on the Commission an obligation to give a direction if the failure to do so might prejudice the fair trial of a person and that was prominent in the discussion in X7.  Your special leave question is framed somewhat broadly as when a person has been compulsorily examined by an investigative agency and the transcript of their examination is later illegally or improperly disseminated to the prosecuting authorities what, if anything, more is needed to establish a miscarriage of justice.  That is the essence of it. 

Of course, investigative agencies interview people who in a general sense might be the subject of some suspicion frequently and it may be very different considerations apply in the case of the disclosure of material to the prosecting authorities in a circumstance where a person comes to be charged with an offence and there is material in an earlier interview that, with hindsight, one can see might bear on that trial and the circumstance such as in X7 where the person had been charged with an offence, the subject of the compulsory examination.

X7 recognises that the commencement of the judicial aspect of the accusatorial process of criminal justice is the laying of the charge, but it also recognises, of course, that the process of criminal justice more generally expressed begins earlier.  Do I understand your reference to the suspicion entertained with respect to the washing powder located during the search would be of the nature that had the police sought to interview your client about his knowledge of that material, the police would have been obliged to caution him?

MR GAME:   Absolutely.

BELL J:   So that your point is one does not, in this instance, draw a distinction between before charge and after charge having regard to that?

MR GAME:   That is correct.

BELL J:   Yes.  I understand.

MR GAME:   Incidentally, your Honour, one usually forgets why one got special leave a second after it has been granted but the actual grounds are about section 6 of the Criminal Appeal Act and assessing the nature of the irregularity, for what that is worth.  But, yes, we do make that ‑ ‑ ‑

FRENCH CJ:   I think, really, you were contained to those grounds by the terms of the grant.

MR GAME:   We were contained to those grounds.  There is a passage in OK – I do not think it is on the list – but the Courts considered OK in X7 – but there is a passage in OK that makes the point about the anticipation of charges being a significant aspect of the process, so yes.

BELL J:  So to come back to your special leave question in the way it is framed, it is directed to the compulsory examination of a person on a subject matter respecting which the investigating authorities entertain a suspicion sufficient to found a requirement to caution.

MR GAME:   Yes, but what we also say, your Honour, is this – and this is recognised in both the joint judgments of the Chief Justice and Justice Crennan, and your Honour Justice Bell and Justice Hayne and Justice Kiefel’s separate judgments – that a provision like section 13(9) or 25A bites if the person has been questioned, but not yet charged.  The real difference was about the nature of the protection, but ‑ ‑ ‑

CRENNAN J:   That is part of the language, “has been” or “may be”.

MR GAME:   Yes, and we say that fair trial is a fair trial that is informed by all of the law that is really developed under section 6 of the Criminal Appeal Act, so cases like Dietrich and Glennon and that body of law are the ideas that inform that fair trial.

BELL J:   The matter that I was taking up with you is in relation to the breadth on one view of the way the special leave question is framed.  Anyway, you go on.

CRENNAN J:   In terms of your argument about a fundamental defect in the process, therefore miscarriage of justice, which I understand, as the Chief Justice put it to you, is the nub of it, is it suggested – and you were referring to the cases in relation to section 6 miscarriage of justice – are you suggesting that the court lacked power in any way to embark on this trial?

MR GAME:   No.  The argument that I am trying to develop and developed in the reply is that when you are looking at a presupposition of the trial – and I took the example of impermissible material going before a jury, and usually that is analysed in terms of Maric and was there a lost chance of acquittal, but if you move on a continuum you will arrive in a different place which is something that impinges on the integrity of the process. 

If the inadmissible material is that the defendant just got out of gaol and the defendant is a paedophile, then at a certain point you are no longer interested in outcome; you are concerned about process, or if there are people standing outside the court with placards announcing – so that it is just a question of assessing the – when I say “just”, it is always a question of assessing the significance of what the underlying principle is and how serious it is in the context of the process, and a point has to be chosen in which the analysis changes.

KIEFEL J:   Is one way of assessing that to ask what the court at the commencement of the trial – if everyone had knowledge of the impropriety or unlawfulness of the material in the hands of the prosecution, if the court was made aware of this, what the court would have done at that point?

MR GAME:   Yes.  We say that one should try and find principles that work in the same way in the different steps of the process.

KIEFEL J:   What do you say the court should have done, hypothetically, if it had been ‑ ‑ ‑

MR GAME:   What the court should have done was order a temporary stay until a different prosecutor was brought on the case and the case was presented in a way that was unaffected by the ‑ ‑ ‑

KIEFEL J:   The difficulty here in terms of outcome, a matter you will need to address later on, is that this matter has gone to a point where that scenario is probably not available.

MR GAME:   It may have been passed, yes.

KIEFEL J:   Yes.

KEANE J:   It could have happened, could it not?  All that would have been required to enable an application for a stay to be made by your side would have been an appreciation of the true effect of 13(9).

MR GAME:   To launch it, yes, your Honour, but we say that that is, in a sense, a counsel of perfection and that armed with the material that showed what actually happened gives the thing a body and life that is of a different order.

KIEFEL J:   I suppose the other way of looking at it is, if the prosecutor had wondered how this came into his hands and had made some inquiries and then alerted the court to the problem that would have also produced another ‑ ‑ ‑

MR GAME:   Yes, well, I asked him over objection, and I did get to ask him one question.  It was whether he considered the legal basis upon which he had it, and he said that he did not, and I was trying to expose that particular legal question which is, what did the prosecution understand about its relationship with this material and the effect of that answer is that it was not considered by the prosecution.  So that he thought it was interesting and useful but he did not turn his mind to its actual contents.

KIEFEL J:   Source.

MR GAME:   Source.  Now, if I come back to the outline on paragraph 5 on the first page.  Now, all that is is a reference to the evidence before the court.  Now, again, what is said in the context of proceedings is not necessarily of great assistance but Justice Basten said at the beginning of the cross‑examination of Mr Barr that he could not see what the relevance of any of the questioning was, and I would ask your Honours to read that cross‑examination, but it is clear that it was led over, shall I say, a fight.

But the point about it is this, that it was said in the judgment that the high point of our case was possession, but the high point of our case was possession and knowledge and this information which was actual knowledge of the contents of the material and the defence having to position themselves in the context of it.  I should have mentioned before that ‑ and it is actually in paragraph 6 of the submissions – there is a reference to paragraph 124 of X7, which is a paragraph of Justice Hayne and Justice Bell’s judgment, which is a paragraph about that even if it were kept secret, but that passage was accepted by your Honour the Chief Justice in Lee at paragraph 54 and that is, in our submission, quite an important driving paragraph in the judgment.

So then we come to that part of our submissions that concern ‑ which I have really dealt with most of now ‑ is what protection is given by section 13(9).  Now, in paragraph 7 we say that an order made under section 13(9) would protect not just direct but also derivative use, if the order were made.

CRENNAN J: What do you mean by derivative use? Can in‑house staff of the Crime Commission take a document that has been produced subject to objection and conduct inquiries based on it – make derivative use of it provided they maintain secrecy as required under section 29? Let me just build in, having regard to their statutory duties under section 6(1)(b). In other words, I am raising with you whether a section 13(9) non‑publication direction would truly preclude further confidential investigation.

MR GAME:   Your Honour, not in every instance.  I agree, not in every instance.

CRENNAN J:   Well, it could not be right, could it, because the facts that are derivate might turn up to be able to be fully proved by independent evidence?

MR GAME:   Yes, but if your Honours – and I am not asking you to do it now – but if your Honours looked at paragraph 102 of Seller which has been referred to in the judgments, Chief Justice Bathurst gave a much more limited work to do in respect of derivative use.  That, we would say, is a much better statement of how it works.  But I would agree, not in every instance.  But what I do say is that in a situation like this – for instance in the case of my client who is already charged with certain offences, is very likely to be charged with others where he would be a suspect who would be entitled to a caution.  You are going to have to be very solicitous about what you actually do with that examination.

CRENNAN J:   I mean, it might be if a prosecutor wanted to use some derivative evidence which was not covered by the privilege as abrogated under 18B, it might be that if it happened to be non‑independently ascertained and governed arguably by a 13(9) direction, that a further direction would need to be sought.

MR GAME:   Yes, I think that is the ‑ ‑ ‑

CRENNAN J:   I mean that may be a more appropriate proposition than to assert that 13(9) absolutely precludes derivative use.

MR GAME:   I agree with that, your Honour.  I agree with that but my point is that if you make an order under section 13(9) it will protect – if you make a proper order in a situation like this then it will protect against derivative use if you make the terms of the order ‑ ‑ ‑

CRENNAN J:   Well, I suppose I was asking you though, that does not encompass, does it, confidential investigation continuing to be undertaken by the Crime Commission staff because they would not be making public this material if they are maintaining confidence in it and any person to whom they showed it, say a potential witness, would be obliged to maintain confidentiality. 

I am just trying to work out how you work out the interface between the prohibition on publication, the statutory duty to investigate and assemble admissible evidence and the fact that some derivative evidence may, indeed, be admissible evidence and the ability of staff to undertake investigations provided, of course, they always maintain confidentiality.

MR GAME:   Your Honour, in a situation like this where you have the investigative authorities – the Crime Commission so closely connected with the investigation – and you are examining my client on the subjects that he is being examined on, if one embarks on that exercise it may not require an exercise of the power under section 13(9) to do so but the Commission could very readily ensure that a Chinese wall be put around the examination.  They could very readily ensure that, shall I say, one is very solicitous with the contents of that examination.

CRENNAN J:   In other words, for example, with the search warrant – I suppose it is not a question for you, but the production of the 72 documents in the box and so on – independently of them being compulsorily produced – take care to utilise the documents independently produced rather than the copies quarantined by section 13(9).

MR GAME:   Yes, your Honour.  What we would say is that even if 13(9) does not specifically apply to what happens internally, if you have a provision such as that that is clearly intending to save the accusatorial process, that if you do not put in, shall I say, Chinese walls and the like or protective processes, the process will fall apart completely because you will end up, as happened in this case, the case is prepared using statements, the prosecutor has the material, and all that does not happen is that the witnesses get into the witness box and give evidence and get cross‑examined on it after – all I am making is the obvious point is the protection is illusory if one is not highly solicitous about how one deals with the examinations in these circumstances, bearing in mind that, as Justice Bell put, if the police had taken off their Crime Commission hats and dragged Mr Seong Lee down to the police station ‑ ‑ ‑

CRENNAN J:   Have to give a caution.

MR GAME:   ‑ ‑ ‑ and turned on the tape recorder, a whole set of different Criminal Procedure Act provisions come into work and he is treated as a suspect.  Under federal law, he would be deemed to be a suspect and a whole series of protections fall in place in terms of – there is a whole part of the legislation, both federal and State, dealing with what happens and yet that is what one is getting at the end of this process.  Anyway, that is what we put.

FRENCH CJ:   The fair trial of a person which is protected by section 13(9) encompasses a trial conducted according to the accusatorial and adversarial process, except that there is a general principle underlying both X7 and Lee.

MR GAME:   Yes, your Honour.  The accusatorial process has developed as explained in both of the joint judgments, but with a different outcome in that ‑ ‑ ‑

CRENNAN J:   You would say part of that is the prosecution is not entitled to any assistance from the accused in relation to defences or anything, explanations or whatever?

MR GAME:   Yes.  I gave this example at the special leave, but if I was prosecuting a case and I happened to see the accused’s instruction sitting on the desk at morning tea, picked them up and read them and put them down again, found it interesting and informative but obviously did not cross‑examine on it when the accused hopped the box, and then three years later a film of what happened showed that this had occurred, nobody would be asking any questions about did he lose a chance of acquittal.  Asking those kind of questions does not strike at what the problem is in the instance.

CRENNAN J:   You are saying, are you not, it is such a fundamental process, defect, that you do not have any need to consider the effect on the verdict?

MR GAME:   That is correct, your Honour.

BELL J:   If that is so, how does a temporary stay until another prosecutor is briefed in the matter resolve the situation?  This depends, I suppose, on acceptance that the prosecuting authorities can establish a satisfactory Chinese wall.

MR GAME:   I think the shoe is on the other foot because the prosecution then has to establish that it can run the case untainted by this process.

KIEFEL J:   But the problem here is it is now too widely disseminated for a court to be satisfied as to that.

MR GAME:   That is our position.

KEANE J:   But if that is your position, then if you succeed it is not about a retrial, is it?  If that is your position there cannot be a retrial.

MR GAME:   That is my position.  I do not want to be too bold but, yes, that is our position, but we also say that if your Honours are not with us on that then you would make an order for a retrial and we would have to sought out in a forensic battle with our opponents as to whether or not they could put them back on trial.  That forensic battle could easily be facilitated in the context of an order for a retrial in which our opponents then sought to satisfy the Court that a stay should not be ordered.

KIEFEL J:   How could the court entertain an application for a stay if this Court has ordered a retrial?

MR GAME:   Well, because, your Honour, the order for the retrial would not foreclose the outcome of the stay ‑ ‑ ‑

KIEFEL J:   But in the circumstances in which the order for retrial has been made?

MR GAME:   It would depend on the circumstances in which the order for a retrial had been made, but the lease of a stay would not have been determined in terms by the order for a retrial. 

FRENCH CJ:   Issues relevant to the stay might include practical questions about choice of prosecutor and so forth and I suppose that could be raised after the point of arraignment, after the point at which the trial had commenced.

MR GAME:   Yes.  I do say that an order for acquittal would be appropriate but I do not want to throw the baby out – another metaphor, but I do not want to put in a lot of claims that are too large.

KIEFEL J:   You would like to have a fall‑back position.

MR GAME:   So I have really already developed – and it does involve a contextual reading of what Justice Basten said in his judgment ‑ but I have really developed what I wanted to say about paragraphs 6 to 8.  At 9 we make the point that that is a clear understatement of our case to say that the high point of the case was possession.  It was more than possession.  When we come to the proviso, we say that – sorry, section 6 and the proviso ‑ ‑ ‑

So what we say is it is a short step to establish miscarriage of justice, but we say that by rolling up the question and putting the onus on us to show practical unfairness or to show that we lost the chance of acquittal by leading miscarriage with substantial miscarriage and putting the onus on us, there is a problem with onus but one has also lost what the significant inquiry is at the point of proviso, applying Weiss, and I particularly have in mind the observations of your Honour, the Chief Justice, in Cesan at 78 to 89 where your Honour examined some of the important cases like Simic and TKWJ which deal with this question.

Really, what I was trying to develop before is when do get to the point where you say that something is a fundamental defect or an essential presupposition of the trial.  I say that actually it comes from a quality of assessment of the gravity identifying what the principle is and assessing the quality of the breach.  It is not going to help to conduct that inquiry to, shall I say, lift the principles out of cases that have dealt with impermissible or inadmissible material coming before the court and a question of admissibility which, in shorthand, usually can be resolved in terms of might the outcome have been different.

So, the analysis, in our submission, would be different.  Then, on the third page I try to develop what we say is the way in which the propositions should be developed.  So what one starts with is one says, okay, the accusatorial system is fundamental.  It is protected here.  It is being breached in a powerful way.  What more is needed?  So one has identified the underlying principle and then one assesses the quality of the breach or the gravity of the breach. 

So if it were, shall I say, inadvertent or if it were for some other purpose or if it was limited to a very small class of people and something else was done then one might say we will not exercise – there is no substantial miscarriage of justice but it is not determined in terms of whether or not there was a lost chance of acquittal.  It is determined in terms of how grave was the breach?

CRENNAN J:   You are saying, are you not, that the only possible relief that the trial judge could have granted would have been a temporary stay?

MR GAME:   That is correct.  Then we say in paragraphs – 14 is really, shall I say, a policy pitch but it is actually an argument about how one – it is a sensible way of dealing with the problem.  That is not going to provide a test but it does provide an idea of the point at which one says that an essential presupposition has been breached. 

We say that such an approach is consistent with the cases about contempt, the cases about stays, the cases about anterior judicial review.  Injunctive relief fits in with Hammond and Sorby and X7, so it makes sense.  We say finally that fair trial is not just plucked out of the air.  Fair trial is something that is developed by reference to the grounding principles and how they have been worked out in the cases.

FRENCH CJ:   Is there any tension between a bright‑line approach and the approach taken to the admission of unlawfully obtained evidence and discussions in Bunning v Cross, which was a case about compulsorily obtained breathalyser test.

MR GAME:   Yes, but Bunning v Cross is all policy.  It is all saying we cannot sack the police for being naughty so we are going to exclude the evidence.  That is policy.  But it is intended to provide – when I say a bright line – section 138 is intended to provide a series of criteria that makes the discretion the discretion of a – it is not an unstructured discretion, it is a discretion that is now informed by a specific inquiry.  So that if you answer it in a particular way, then you must either admit or exclude with an onus.

The difference here is ‑ and his Honour Justice Basten said it was no different than possession of inadmissible material.  Well, it is very different than that because it is the nature of the possession that is in question and it does not improve the position if the prosecutor turned up to court and made a hopeless attempt to tender this transcript, which is the logical consequence of what Justice Basten says in that paragraph of the judgment.  So that is

how we put the argument, and those are our submissions, if the Court pleases.

FRENCH CJ:   Thank you.  Yes, Mr Thangaraj.

MR THANGARAJ:   Your Honours, we adopted the oral and written submissions of Mr Game below and we do so again today and I do not propose, subject to your Honours questions, I do not propose to ‑ ‑ ‑

FRENCH CJ:   Again, without wanting to take you away from your approach, it would be helpful if we just went over the factual framework, so far as it affects your client.

MR THANGARAJ:   Could I ask your Honours to go to our written submissions, not the outline, the ‑ ‑ ‑

FRENCH CJ:   Yes.

MR THANGARAJ:  ‑ ‑ ‑ and we have a narrative/chronology from paragraph 7 onwards, and I think that covers all the matters that ‑ ‑ ‑

FRENCH CJ:   Your client was examined on two occasions, I think.

MR THANGARAJ:   He was.

FRENCH CJ:   November 2009 and December?

MR THANGARAJ:   December.

FRENCH CJ:   Yes, and in terms of the charges, your client was charged with the two firearms offences, the money laundering offence in December 2009 and with the supply of prohibited drugs in May 2010, on the 13th, I think.

MR THANGARAJ:   That is correct, your Honour, but we had already been charged with separate offences in February ‑ ‑ ‑

FRENCH CJ:   Yes.

MR THANGARAJ:  ‑ ‑ ‑ including cash and, arguably, the examinations that we were then exposed to related to that same topic.  It is not a problem for this appeal but it is ‑ perhaps my client should not even have been questioned about cash, given the existing charges.

BELL J:   But the point is that that circumstance does not arise in this appeal.

MR THANGARAJ:   No.

BELL J:   Yes.

KIEFEL J:   Could I just ask you for a point of clarification?  In the joint chronology it is said that on 12 May all the charges against your client, except the possession of drugs, were withdrawn and dismissed.  Is that correct?

MR THANGARAJ:   I think there was some replacing of charges, your Honour.

KIEFEL J:   It goes on to say that you were effectively charged again with two counts of supply but that leaves all of the other charges.  I am just not quite sure.

MR THANGARAJ:   I am sorry, there are outstanding trial matters for my client alone.  That is at paragraph 7 of our narrative, your Honour.

BELL J:   On 17 May 2010 you were charged with the drug offences relating to the material seized in the execution of the search warrant.

MR THANGARAJ:   I think that was the third – paragraph 15 of our submissions, your Honour.

BELL J:   I am sorry, 13 May.  Sorry, yes.

MR THANGARAJ:   Yes, and your Honour will see a few lines later that it was Seong Lee that was the 17th.

BELL J:   Yes.  Can I just take up one factual matter with you arising out of the interview, or the interviews at the Crime Commission?  Is it the case that either the police or Crime Commission officers had before the interview, with the first of your client’s interviews, been conducting some [Transcript redacted]

MR THANGARAJ:   I will find out about that, your Honour.  [Transcript redacted]  The seven deponents, I understand, were only spoken to post the production by us of the compelled documents, but whether they had spoken to other people, we will find that out.

The dissemination ‑ and this engages one of the questions that your Honour Justice Crennan asked about secrecy et cetera ‑ but those seven people were only spoken to after the request from the Director’s office.  It may be that that generated a series of requisitions or – in any case, we know that the deponents were spoken to after dissemination to both the police and the Director’s office.  That is the chronology.

CRENNAN J:   So on one view they are continuing investigation post the dissemination?

MR THANGARAJ:   Perhaps at someone’s request, or perhaps of their own initiative.

CRENNAN J:   From the chronology, it seems done in‑house, if I can be colloquial about the Crime Commission.

MR THANGARAJ:   It was done on New South Wales Police Force pro forma statements, but it was done by Crime Commission officers.

FRENCH CJ:   It had the police force letterhead on it, or logo?

MR THANGARAJ:   Yes.

CRENNAN J:   Do you want to deal with the point at page 40 ‑ which I raised and Mr Game did not wish to say anything about it, obviously ‑ this is the point that Mr Sutherland, at one of the early hearings where there were some disputes about the admissibility of evidence and also some discussion of what I will call the real issues in the case on an Alford v Magee analysis, Mr Sutherland refers to the [Transcript redacted]

MR THANGARAJ:   Yes.

CRENNAN J:   How does your complaint work about the prosecution having these transcripts and revealing that, as you put it in argument in your written submissions, I think, [Transcript redacted] couple of months before the trial?

MR THANGARAJ:   Well, I think by this stage, your Honour, it has been made clear that the Crown has the material and has read it and Mr Sutherland immediately complains about that or he is concerned about that.

Secondly, it was submitted that our case was confined to the Crown Prosecutor.  Actually, the Crown’s case was confined to evidence from the Crown Prosecutor at trial.  It was not as though our case was confined to a complaint about him.  But the point that is sought to be made that the prosecutor did not read the material concerning Seong Lee, in our submission, it just does not run.  All he said in his affidavit was it is my practice to read the material.  I have no recollection of reading Seong Lee’s.  In cross‑examination at 1166 in volume 3 of the appeal books, when he is being cross-examined by Mr Thangaraj, he says:

I had read the Crime Commission material -

at line 22.  Then, so it goes.  He is not limiting himself to Jason Lee.  When it comes to my one question at page 1170 – and this question is relevant for another reason because it does go to this question about the legal basis.  This is 1170, line 30:

Q.       You said in answer to some questions that you thought you were entitled to read the examinations?
A.       Yes.

Q.       Did you turn your mind to the legal basis on which they were before you?

The Crown objects, and then I said it was not to show misconduct, it was to show “whether or not he considered the legal basis” and I was submitting it was “a relevant fact”, or may be.  I said:

Q.       Did you at any time?
A.       I considered it unusual that I had material which seemed to disclose their defence case –

It is not limited to Jason Lee and it would be very strange if it was.  So that is that point.  The next point is in respect of dissemination.  Though a dissemination order was required because they were Crime Commission operatives, that does not cut away at all from our point concerning dissemination to the prosecution, but there is another point I just wanted to draw out here which - your Honours would not have appreciated this, but in cross‑examination of Mr Hughes at page 1175 in volume 3, I extracted from him at line 20 that he was not actually aware that he was on secondment, so he was completely unaware that he was an officer of the Crime Commission.  Mr Plummer gave the same evidence at 1180 to 1181.

So, the idea that there was no problem with dissemination when these people were not even aware that they were officers of the New South Wales Crime Commission rather loses its force.  Somebody had made them officers of the Crime Commission but they were completely unaware of the fact and it had never been communicated to them.

Now, in relation to Mr Stewart, he was not cross‑examined.  There are privilege issues and there was an exchange between me and Justice Hall as to just how far one can actually depose to these things and that was a fairly carefully framed paragraph which kind of was very careful not to go an inch beyond that which could ‑ ‑ ‑

FRENCH CJ:   He just said it closed off the possibility.

MR GAME:   That is right, yes.  Now, can I just say this, though, your Honour, it was put in the submissions by the Crown today that we did not make specific submissions in relation to the position of the prosecutor or the position relating to Mr Stewart but we did.  It is at 2157, line 30, in respect of the defence and it is at 2160, line 32, in respect of the prosecutor.  So, it is abundantly clear that we put the matter on the general basis and we put it on a specific basis and a fair reading of the submissions will disclose that. 

In respect of the - incompetence of counsel is a good contrast because incompetence of counsel is not going to take you anywhere unless you can show that it has some effect on the process.  So, the same is in administrative law why one is often looking for an effect in - for denials of procedural fairness is because you say well, I was not given the chance to do such and such, well what would you have done?  But once you say “I was not given the chance to call a witness” you do not go on and say was the witness going to be a really good witness and might they have got you off.  It is a different – the cause of inquiry is a different one in procedural fairness and so one has to look at what the actual cause and effect is that you are looking at. 

Now, I will not take your Honours to it but there is Justice McHugh’s judgment in TKWJ goes on into an ultimate paragraph which I think your Honour the Chief Justice in fact referred to in Cesan after he has discussed Simic, where he says there will be cases that go beyond that point and I think that is what your Honour Justice Crennan was referring to. 

Now, lastly, we submit that in a way, for the kind of reasons that emerged in the debates today about cause and effect, that what we put in paragraph 14 in our hand‑up today does have some force.  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 10 o’clock tomorrow morning.

AT 4.07 PM THE MATTER WAS ADJOURNED