MAC v The Queen

[2017] NSWCCA 219

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	MAC v R [2017] NSWCCA 219
Hearing dates:	17 February 2017
Date of orders:	27 March 2017
Decision date:	08 September 2017
Before:	Simpson JA at [1]; Johnson J at [132]; Fagan J at [133]
Decision:	(1)  Leave to appeal granted;  (2)  Appeal dismissed.
Catchwords:	CRIME – application for leave to appeal – interlocutory application – application for a permanent stay of proceedings – where applicant was compulsorily examined at the Australian Crime Commission before being charged – where impropriety on behalf of investigating police officers – whether irremediable prejudice occasioned to the applicant – whether impropriety rendered the proceedings an abuse of process
Legislation Cited:	Australian Crime Commission Act 2002 (Cth), ss 7B, 7C, 24A, 25A, 28, 30 Crimes Act 1914 (Cth), s 23L, Pt 1C Criminal Appeal Act 2012 (NSW), s 5F Criminal Assets Recovery Act 1990 (NSW) Criminal Code (Cth), ss 11.1(1), 307.5(1) Criminal Procedure Act 1986 (NSW), ss 130A, 139 Customs Act 1901 (Cth), s 233BABA Evidence Act 1995 (NSW), ss 138, 139 New South Wales Crime Commission Act 1985 (NSW)
Cases Cited:	Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 Hammond v Commonwealth (1982) 152 CLR 63; [1982] HCA 42 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 R v Bailey (1988) 36 A Crim R 30 R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 R v Powch (1988) 14 NSWLR 136 R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 R v X [2014] NSWCCA 168 Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Steffan v R (1993) 30 NSWLR 633 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 X7 v R (2014) 292 FLR 57; [2014] NSWCCA 273
Category:	Principal judgment
Parties:	MAC (Applicant) Regina (Respondent)
Representation:	Counsel: M Thangaraj SC (Applicant) P McDonald SC (Respondent)   Solicitors: Elie Rahme and Associates Pty Ltd (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2010/315977
Publication restriction:	Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 02 December 2016 Before: Woodburne DCJ File Number(s): 2010/315977

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was observed by Australian Federal Police (“AFP”) officers removing two bags from a shipping container and loading them into a vehicle. The contents of the container had previously been intercepted by AFP officers and two bags of cocaine were replaced with harmless substances. Later on the same day AFP officers approached the applicant and invited him to participate in an interview at AFP offices, to which he agreed; he was told that he was not under arrest at that time.

Shortly after the applicant attended AFP offices, the Australian Crime Commission (“ACC”) issued a summons for him to attend an examination that night in relation to “serious drug offences, involving cocaine”. The examination commenced at some time after 10.00pm. Officers of the AFP were present in an ante-room at ACC offices, into which the examination was live-streamed. Examinations held under the Australian Crime Commission Act 2002 (Cth) are confidential and compulsory, that is, it is an offence to refuse to answer a question at an examination. As at the relevant time, there was doubt as to whether a person who had been charged with an offence could be compulsorily examined about that offence. Evidence given at an ACC examination cannot be used in criminal proceedings against an examinee if privilege against self-incrimination is claimed before answering.

Immediately after the examination, the applicant was arrested by AFP officers and charged, pursuant to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth), with an offence of attempting to possess a border controlled drug (cocaine) in not less than the commercial quantity. Subsequently, as a consequence of information provided by the applicant in the examination, AFP officers obtained further evidence (“derivative evidence”).

Before the commencement of the trial, the applicant sought to have the derivative evidence excluded on the basis that it was obtained improperly or illegally (s 138 of the Evidence Act 1995 (NSW)). In the course of providing reasons for refusing the application to exclude the evidence, Charteris DCJ made several factual findings about the investigative process, including that:

• the AFP had ample evidence to arrest and charge the applicant before the examination and formed an intention to do so before arriving at AFP offices; however, the AFP believed that it was not lawful to examine a person charged with an offence about that offence;

• the summons was sought and issued with unexplained and “extraordinary haste” that departed from the normal practice of allowing three days’ notice. Accordingly, the applicant was deprived of the opportunity to seek legal representation;

• it was “an extraordinary circumstance” that AFP officers actively involved in the investigation of the charge were permitted to be present at the examination by permission of the Examiner;

• AFP officers had obtained an “extraordinary advantage” in their investigation by having the normal confidentiality orders varied so as to provide AFP officers with the information obtained at the examination; and

• the AFP officers had acted “improperly” and had done so “deliberately”.

However, Charteris DCJ found that the derivative evidence would, in all probability, have been obtained by investigating officers notwithstanding the information gained improperly from the examination. Accordingly, he declined to exclude the evidence.

Subsequently, the applicant sought a permanent stay of the prosecution on two bases: first, that the evidence he had sought to have excluded and the process by which it was obtained rendered the trial irremediably unfair; and, secondly, that the prosecution amounted to an abuse of process and would tend to undermine public confidence in the criminal justice system. Woodburne DCJ dismissed the application for a permanent stay, adopting the findings of fact made and the conclusions drawn by Charteris DCJ in his ruling. The applicant sought leave in the Court of Criminal Appeal to appeal against the decision of Woodburne DCJ.

The applicant advanced eight grounds of appeal, variously concerned with Woodburne DCJ’s exercise of discretion in refusing the application.

Held

Simpson JA at [1] (Johnson J at [132] and Fagan J at [133] agreeing) granting leave to appeal but dismissing the appeal:

(1)   Woodburne DCJ did not prejudge the application for a permanent stay: at [78]-[87].

Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 considered; X7 v R (2014) 292 FLR 57; [2014] NSWCCA 273 considered.

(2)   Her Honour did not fail sufficiently to consider whether to grant a permanent stay on the basis that there had been an abuse of process: at [88]-[92].

Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 distinguished; Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 distinguished.

(3)   Her Honour’s consideration that the derivative evidence could be subject to an application for exclusion was an irrelevant consideration, but the effect of the consideration on the outcome of the application was not established: at [93]-[95].

Criminal Procedure Act 1986 (NSW), ss 130A and 139 considered.

(4) Section 30 of the Australian Crime Commission Act 2002 (Cth) abrogated the applicant’s common law privilege against self-incrimination, and did not give rise to an order for a permanent stay: at [96]-[100].

Australian Crime Commission Act 2002, s 30 applied; Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 considered; House v The King (1936) 55 CLR 499; [1936] HCA 40 applied; X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 considered; Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 applied; Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 applied; R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 applied.

(5) The practical denial of the applicant’s right to legal advice, in circumstances where the Examiner explained his entitlement to claim privilege under s 30(4) of the Australian Crime Commission Act 2002, did not give rise to the award of a permanent stay: at [101]-[105].

Australian Crime Commission Act 2002, ss 25A & 30(4) considered; House v The King (1936) 55 CLR 499; [1936] HCA 40 applied.

(6)   Woodburne DCJ did not err in failing to consider that the ACC had engaged in misconduct by departing from their “normal practice” of providing an examinee three days’ notice of the examination, as the matter was not put to her Honour: at [117]-[118].

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 considered.

(7)   The fact that AFP officers who will give evidence in the trial of the applicant have had access to the transcript of the examination does not give rise to irredeemable prejudice such to justify a permanent stay: at [117]-[127].

Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 considered; Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 considered.

Judgment

1. SIMPSON JA: Since at least 2013, the High Court of Australia, this Court and trial courts have grappled with the implications for the criminal process of the exercise of coercive powers of interrogation granted by both State and Federal legislatures to various law enforcement and investigatory bodies: see, for example X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 (“X7 v ACC”); Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 (“Lee v NSWCC”); Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (“Lee v The Queen”); R v X [2014] NSWCCA 168; X7 v R (2014) 292 FLR 57; [2014] NSWCCA 273 (“X7 v R (NSWCCA)”); Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 (“Zhao”); R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 (“Seller and McCarthy”). In fact, the debate goes back further than 2013: see (in a different context) Hammond v Commonwealth (1982) 152 CLR 63; [1982] HCA 42.

2. It is, I think, fair to say that the proper approach is in a state of evolution. Not least is that because the relevant legislative provisions, Commonwealth and State, take different forms and use different language – and, indeed, have been amended over the years to take account of judicial decisions.

3. On 26 June 2013, in X7 v ACC, the High Court, constituted by five Justices, held, by majority, that certain provisions of the Australian Crime Commission Act 2002 (Cth) (“the ACC Act”) that provided for compulsory examination of persons for the purposes of a special Australian Crime Commission (“ACC”) operation or investigation did not extend to authorising such examination of a person who had been charged with a criminal offence about the subject matter of that offence (where the charge had not proceeded to trial or finality).

4. Less than four months later (9 October 2013), in Lee v NSWCC, the High Court (now constituted by seven Justices), again by majority, held that certain provisions of the Criminal Assets Recovery Act 1990 (NSW), which also authorised compulsory examination, extended to authorising such examination of a person on matters the subject of criminal charges pending against the person examined. The majority did not overrule X7 v ACC. French CJ identified material differences in the schemes for examination for which provision was made by the relevant statutes.

5. On 21 May 2014, in Lee v The Queen, the High Court held unanimously that a trial in which the prosecution had had access to evidence given in an earlier compulsory examination, this time under the New South Wales Crime Commission Act 1985 (NSW) (“the NSWCC Act”), had miscarried for that reason, and ordered a new trial.

6. This case does not raise the lawfulness of the exercise of coercive powers to interrogate where the person the subject of the interrogation has been charged with a criminal offence or offences. Rather, it raises questions about what is claimed to be impropriety or, in one respect, unlawfulness, of conduct on the part of law enforcement or investigative authorities in relation to a compulsory examination under the ACC Act, and the potential effect of any such impropriety or unlawfulness on the fairness of an ensuing trial. It is worth noting that the events the subject of these proceedings took place in 2010, substantially pre-dating any of the decisions mentioned above. It is also worth noting that the relevant legislation is that which pertained in 2010, and that significant amendments have since been made.

7. The present proceeding is an application for leave to appeal under s 5F(3) of the Criminal Appeal Act 2012 (NSW) against an order of the District Court dismissing a Notice of Motion seeking permanent stay of an indictment alleging a criminal offence. The application for leave to appeal was heard on 17 February 2017. On 27 March 2017 the Court made orders granting leave to appeal but dismissing the appeal. The following are my reasons for joining in those orders. The procedural history is more complicated than the opening sentence of this paragraph would suggest.

Procedural history

8. In circumstances later to be outlined, the applicant was arrested by agents of the Australian Federal Police (“AFP”) in the early hours of the morning and charged with an offence of attempting to possess a border controlled drug (cocaine) in not less than the commercial quantity, contrary to s 307.5(1) of the Criminal Code (Cth) and s 11.1(1). Over a year later he was committed for trial. Various trial dates that were fixed from time to time were vacated, for reasons it is not necessary to explore.

9. The trial was again fixed to commence on 14 July 2014 and was listed before Charteris DCJ. It was then adjourned to the following day. On 15 July 2014, before a jury was empanelled, the applicant’s legal representatives advised that an issue had arisen as to the admissibility of significant parts of the evidence proposed to be led in the Crown case. The applicant sought a ruling, under s 138 of the Evidence Act 1995 (NSW), that the evidence of a number of proposed prosecution witnesses (evidence that the applicant contended had been illegally or improperly obtained) be excluded. Section 138(1) mandates the exclusion of evidence illegally or improperly obtained, or obtained in consequence of illegality or impropriety, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence in question was obtained. Sub-sections (2) and (3) of s 138 throw further light on the application of sub-s (1). Discussion took place over that and the following day, and the matter was ultimately fixed for a voir dire hearing commencing on 4 August 2014. Evidence was given on 4, 5 and 6 August, and argument took place on 14 August. The extensive evidence put before Charteris DCJ included statements of various AFP officers proposed to be called in the Crown case, a Crown Outline of Facts, and documentary evidence of procedures that had taken place prior to the charging of the applicant. A number of AFP officers who had made statements gave oral evidence, as did Ms Philippa De Veau, who at the relevant time was the National Manager of Legal Services of the ACC.

10. On 11 November 2014 Charteris DCJ delivered judgment. He rejected the application to exclude the evidence in question and ruled that all evidence “can be properly admitted”. In the course of doing so, he made findings of fact, some adverse to the AFP and the ACC, and drew certain adverse conclusions as to their conduct. By sub-ss 130A(1) and (5) (and/or sub-ss 139(3)(e) and (5)) of the Criminal Procedure Act 1986 (NSW), that ruling was binding upon a future trial judge (unless, in the opinion of the trial judge, it would not be in the interests of justice for the ruling to be binding). It was not open to the applicant under s 5F(3) to challenge the evidentiary ruling of Charteris DCJ: R v Powch (1988) 14 NSWLR 136; R v Bailey (1988) 36 A Crim R 30; Steffan v R (1993) 30 NSWLR 633. That is because s 5F(3) permits an appeal, by leave, against “an interlocutory judgment or order”, and a ruling on the admissibility of evidence is neither a judgment nor an order.

11. By Notice of Motion filed in the District Court on 30 November 2015, the applicant sought a permanent stay of the trial. The application came before Woodburne DCJ. The basis upon which the applicant sought permanent stay was essentially identical with the basis on which he had unsuccessfully sought the exclusion of some of the prosecution evidence – that is, he contended that the evidence was illegally or improperly obtained, and that, as a consequence of what had occurred, any trial of the applicant would be irredeemably unfair. The evidence before her Honour was that given before Charteris DCJ (including the transcript of oral evidence), supplemented by additional material.

12. On 2 December 2016 her Honour declined to order a permanent stay of the trial, giving reasons. She substantially adopted the findings of fact made and conclusions drawn by Charteris DCJ. She dismissed the Notice of Motion. That is the order the subject of the present application. The order being discretionary, it was necessary that the applicant establish error of the kind specified in House v The King (1936) 55 CLR 499; [1936] HCA 40. By something of an anomaly in s 5F, although the foundation for the applicant’s proposed appeal lies in the evidentiary ruling, it remains open to an accused person to seek a permanent stay based on evidentiary considerations (or, more accurately, the perceived consequences of an evidentiary ruling), and an application for leave to appeal against such ruling is not necessarily precluded by the decisions cited above (although the circumstance that the real issue is one of evidence may be relevant to whether leave is granted): see DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63.

Relevant statutory provisions

13. It is convenient here to set out the relevant provisions of the ACC Act to which reference will be made below. They are stated as they existed at the relevant time:

“7B  Establishment of the Board

(1)  The Board of the ACC is established by this section.

Board members

(2)  …

Chair

(3)  …

7C  Functions of the Board

(1)  …

Special operations

(2)  The Board may determine, in writing, that an intelligence operation is a special operation. Before doing so, it must consider whether methods of collecting the criminal information and intelligence that do not involve the use of powers in this Act have been effective.

(3)  The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective.

[Sub-s (4) sets out particular requirements of determinations under sub-ss (2) and (3)]

(5)  …

(6)  …

24A  Examinations

An examiner may conduct an examination for the purposes of a special ACC operation/investigation.

25A  Conduct of examination

Conduct of proceedings

(1)  An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit.

(2)  …

Persons present at examination

(3)  An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

(4)  Nothing in a direction given by the examiner under subsection (3) prevents the presence, when evidence is being taken at an examination before the examiner, of:

(a)  a person representing the person giving evidence; or

(b)  a person representing, in accordance with subsection (2), a person who, by reason of a direction given by the examiner under subsection (3), is entitled to be present.

(5)  If an examination before an examiner is being held, a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present by reason of a direction given by the examiner under subsection (3) or by reason of subsection (4).

Witnesses

(6)  At an examination before an examiner:

(a)  counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; or

(b)  any person authorised by the examiner to appear before the examiner at the examination; or

(c)  any legal practitioner representing a person at the examination in accordance with subsection (2);

may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation.

(7)  If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must:

(a)  inform the witness that the person is present; and

(b)  give the witness an opportunity to comment on the presence of the person.

(8)  …

Confidentiality

(9)  An examiner may direct that:

(a)  any evidence given before the examiner; or

(b)  the contents of any document, or a description of any thing, produced to the examiner; or

(c)  any information that might enable a person who has given evidence before the examiner to be identified; or

(d)  the fact that any person has given or may be about to give evidence in an examination;

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

(10)  Subject to subsection (11), the CEO may, in writing, vary or revoke a direction under subsection (9).

(11)  …

(12)  …

(13)  …

(14)  …

(15)  …

28  Power to summon witnesses and take evidence

(1)  An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.

(1A)  Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:

(a)  before the issue of the summons; or

(b)  at the same time as the issue of the summons.

(2)  …

(3)  …

(4)  …

(5) An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:

(a)  the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and

(b)  the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.

(6)  …

(7)  …

(8)  …

30  Failure of witnesses to attend and answer questions

Failure to attend

(1)  A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:

(a)  fail to attend as required by the summons; or

(b)  fail to attend from day to day unless excused, or released from further attendance, by the examiner.

Failure to answer questions etc.

(2)  A person appearing as a witness at an examination before an examiner shall not:

(a) when required pursuant to section 28 either to take an oath or make an affirmation--refuse or fail to comply with the requirement;

(b)  refuse or fail to answer a question that he or she is required to answer by the examiner; or

(c)  …

(3)  …

Use immunity available in some cases if self-incrimination claimed

(4)  Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:

(a)  a person appearing as a witness at an examination before an examiner:

(i)  answers a question that he or she is required to answer by the examiner; or

(ii)  …

(b)  …

(c)  before answering the question … the person claims that the answer … might tend to incriminate the person or make the person liable to a penalty.

(5)  The answer, document or thing is not admissible in evidence against the person in:

(a)  a criminal proceeding; or

(b)  …

(c)  …

(d)  …

Offence for contravention of subsection (1), (2) or (3)

(6)  A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

(7)  …

(8)  …

(9)  …”

14. Part 1C of the Crimes Act 1914 (Cth) is concerned with the investigation of Commonwealth offences. Division 3 is directed to the obligations of investigating offences with respect to (inter alia) persons who were under arrest. (By way of example, s 23F(1) required an investigating official, before questioning a person under arrest, to give a conventional caution that the person need not say or do anything, but that anything the person does or says may be given in evidence.) Section 23L of the Crimes Act provided:

“23L Exceptions

(1) Subject to subsections (2) and (4), if a requirement imposed on an investigating official by this Part is expressed as being subject to this section, the requirement does not apply if, and for so long as, the official believes on reasonable grounds that:

(a)  compliance with the requirement is likely to result in:

(i)  an accomplice of the person taking steps to avoid apprehension; or

(ii)  the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b)  if the requirement relates to the deferral of questioning--the questioning is so urgent, having regard to the safety of other people, that it should not be delayed by compliance with that requirement.

(2)  If the requirement relates to things done by or in relation to a legal practitioner, subsection (1) only applies:

(a)  in exceptional circumstances; and

(b)  if:

(i)  an officer of a police force of the rank of Superintendent or higher; or

(ii)  the holder of an office prescribed for the purposes of this section, other than an office in a police force;

has authorised the application of subsection (1) and has made a record of the investigating official's grounds for belief.

(3)  If the application of subsection (1) is so authorised:

(a)  the record of the investigating official's grounds for belief must be made as soon as practicable; and

(b)  the investigating official must comply with the requirement as soon as possible after subsection (1) ceases to apply.

(4)  If the application of subsection (1) results in:

(a)  preventing or delaying the person from communicating with a legal practitioner of his or her choice; or

(b)  preventing or delaying a legal practitioner of the person's choice from attending at any questioning;

the investigating official must offer the services of another legal practitioner and, if the person accepts, make the necessary arrangements.”

Factual background

15. The following account of facts draws upon the evidence before Charteris DCJ, the evidence before Woodburne DCJ, and findings of fact made by their Honours for the purposes of the proceedings before them. It cannot and does not purport to be a statement of concluded facts for the purpose of the criminal proceedings against the applicant.

16. On 9 June 2010 the Board of the ACC declared, pursuant to s 7C(2) of the ACC Act, that an authorised intelligence operation was, for the purposes of s 25A of the ACC Act, a “special operation”. The purpose of the intelligence operation was (put briefly) to investigate “federally relevant criminal activity”.

17. In July 2010 a Joint Agency Agreement was signed on behalf of the AFP, the Customs and Border Protection Service, the NSW Crime Commission (“the NSWCC”) and the ACC, and a Joint Task Force was established. The Joint Task Force was given the code name “Operation Polaris”. The purpose of the Joint Agency Agreement and the Joint Task Force was to target:

“… serious and organised criminal activity involving the international sea cargo terminals in New South Wales and specifically focussing on criminal activity involving goods under Customs control.”

The Joint Agency Agreement was later expanded to include the NSW Police Force, but that is not presently relevant. So far as is material, Federal Agent Kelly Mansfield of the AFP directed the operation.

18. All members of Operation Polaris (presumably including ACC officers) were sworn in as Special Members of the AFP, and all members of the Operation (including AFP agents) were co-opted as staff members of the ACC. This had certain consequences that will be discussed below. One member of Operation Polaris was Federal Agent (“FA”) Timothy Gresham.

19. The Joint Task Force became interested in a container ship bound for Australia, and carrying in its cargo a container of lawful imports. The ship docked in Sydney and berthed at a wharf occupied by a cargo handling company . Suspicions were aroused and Customs officials conducted an examination of the contents of the container, which was subsequently opened by AFP officers and found to contain, in addition to its legitimate content, two bags that later proved to contain cocaine with a calculated pure weight of over 30 kilograms, with a street value of up to $25 million. The Joint Task Force’s investigation into this importation was given an operational code name, which appears to have been under the control of the AFP. FA Gresham was also a member of the operation.

20. A controlled operation authority (under s 233BABA of the Customs Act 1901 (Cth)) was issued; the cocaine was removed and replaced by a harmless substance. The container was thereafter under continuous surveillance. As a consequence of the surveillance, a number of individuals were observed (and later charged). The container was transported to a terminal in a Sydney suburb. A driver employed by the operators of the terminal, was asked by another employee, to put the container down in a specified location so that that employee could take some items from it. The driver complied.

21. Observations by the Joint Task Force implicated the applicant in removing the bags from the container and placing them in the tray of a vehicle, which was in the applicant’s possession at the time, at about 1.00am the same day. The applicant then drove the vehicle to another address in the same suburb, an address occupied by an associate. He parked the vehicle outside that address.

22. At 1.38pm , AFP Agent Peter Austin (“FA Austin”, identified as a “Team Leader – Examinations Team Serious and Organised Crime”) communicated by email with Ms Austin, a lawyer (“counsel assisting”) employed by the ACC. In his initial email FA Austin wrote:

“If you get a quick break could you please call me.

The above matter is running as we speak and the investigators (Kelly Mansfield) would like to put someone before an exam ASAP.

Kelly was hopeful of tonight but obviously that is highly unlikely.”

(The “exam” to which FA Austin referred was a compulsory examination under s 24A of the ACC Act, of which more will be said later in these reasons. As later became apparent, the “someone” to be put before an examination was the applicant.)

An hour later, at 2.33pm, FA Austin again emailed Ms Austin, saying that he would give some more background to the matter, and said:

“They are yet to confirm identity of proposed witness. Witness has come to notice due to actions undertaken with regard to the consignment.

At this time I am waiting details of the proposed witness and current status/direction of matter.”

23. Attached to this email was a document entitled “ACC Examination Referral Form”, which, FA Austin said, would “give you some idea of background to matter”. Also attached to the email was a “Briefing Note” (undated), which outlined the discovery of the cocaine, and suspicions that an employee of D P World was planning to remove the drugs before the container was delivered to the pharmaceutical company to which it was addressed.

24. The “Examination Referral Form” was plainly designed as a proposal for an examination by the ACC under s 24A of the ACC Act. Such an examination is regulated by s 25A. The “objectives” of the examination were stated in the Referral Form as:

“-  Witness knowledge of the matter.

-  Identity of other persons involved in matter.

- Identification of premises relevant to matter.”

The box on the form providing for identification of the proposed witness was left blank; it was common ground that the proposed witness was the applicant.

25. At 4.21pm FA Austin sent an email to FA Mansfield, and another person, saying:

“Nothing back from ACC Counsel Assisting as yet. She has been in an exam all day so may well still be there.

Have sent a referral down – without witness details – to give them some background on the matter.

The norm for the ACC is to give the witness three days (from service to appearance) to obtain legal representation. Not ideal in this instance and hopefully can be worked through.

It may well come down to availability of an Examiner at short notice.

Once I hear anything from ACC I shall get back to you …”

26. At about 4.00pm in the afternoon , at the address where the applicant had parked the vehicle , FAs Fletcher, Byles and Jones approached and spoke to the applicant. He was told that he was not under arrest, was cautioned, and invited to participate in an interview at AFP offices. He agreed to do so, and was transported to the AFP offices in the CBD.

27. At about 7.20pm the applicant participated in a brief interview, the salient part of which was:

“FA Byles: Okay, do you agree that you were happy to come and have a chat with us back at our office?

[Applicant]: Yep.

FA Byles: And you agree that you understand that you’re not under arrest.

[Applicant]: Yep.”

28. Just before 8.30pm, presumably in response to the Examination Referral Form, Examiner Hannaford of the ACC, under s 28 of the ACC Act, issued a summons to the applicant requiring him to attend before an Examiner at ACC offices at 9.30pm that evening:

“… to give evidence of or about … serious drug offences, involving cocaine … and dealing with money or property contrary to [specified sections of the Criminal Code (Cth)]”.

At the time the summons was issued the applicant was at AFP Headquarters in the company of AFP agents, where it was served on him by FA Gresham.

29. At about 10.00pm FA Gresham and FA Byles escorted the applicant to the ACC offices. FA Gresham remained outside the examination room, in an ante room, while the examination took place. Although he professed to have no recollection whether the proceedings were audio or video streamed into the ante room, there was evidence that such facilities existed, and Charteris DCJ considered it probable that the proceedings had been audio or video streamed, and, therefore, that FA Gresham had had immediate access to the answers given by the applicant. The applicant informed members of the ACC that he could not read properly. The summons and its various annexures were read to him. Examination of the applicant took place, conducted by Examiner Hannaford. The record of the examination, which does not specify the commencement or finishing time, is lengthy, and includes the following:

“Examiner: Now …the Australian Crime Commission is not a traditional Police investigating agency. The Australian Crime Commission’s role is as a criminal intelligence organisation and I conduct these hearings as part of that exercise of gathering information or intelligence about a particular activity which is of interest and is a concern to me. Now, as you appreciate with an intelligence organisation, the law under which I operate requires that these hearings be conducted in private. Now, that means no one is allowed to be present during one of these hearings without my approval. It is also means that nothing that is said during one of these hearings is allowed to be released to anybody without my approval and I’m going to talk to you a bit more about that in a few moments time. Now, the Australian Crime Commission Act which is the law under which I operate does permit me to allow people to be present where those people are members of the Australian Crime Commission staff. Now, I have received a request from certain people who are members of the staff of the Commission seeking permission to be present from time to time during the course of the hearing. Now, the names of those members of staff who have sought that permission are on a list that is in front of me and I’m going to grant permission for those people to be present by writing on this list the following words, [‘]approved the presence of the above named members of ACC staff.[’] And I’ve signed that list and I’ve dated it today’s date. Now that means … no one else is allowed to be present during the course of these discussions …”

Examiner Hannaford issued an “Authority to Attend” under s 25A(3) of the ACC Act. This entitled the persons named to be present at the examination. Those authorised were Ms Austin as counsel assisting, another person (whose name has been redacted) as “examination assistant, ACC”, Trent White as Intelligence Manager “C and A”, ACC, Michael Beard (Intelligence Analyst, ACC), Evan Bouris (Team Leader, ACC), Tim Gresham and Kelly Mansfield, the last two as Federal Agents of the AFP. There is no indication in the transcript that the applicant was shown the list (in any event, he had already said that he could not read properly) or that the list of names, or the capacity in which the individuals named were authorised to attend.

30. The applicant did not have a legal representative in attendance, despite an annexure to the summons for his examination expressly setting out that examinees were entitled to have a representative attend. Indeed, given the short time period between his interview with AFP officers and being escorted to the examination room, the applicant could not practically have arranged for one to be present.

31. The applicant quite plainly expressed some concern about the confidentiality of the examination. The following exchange is recorded in the transcript:

“[Applicant]:  Whatever questions I answer in here will that go any further,

[Examiner]:  No

[Applicant]: Or anyone

[Examiner]: No

[Applicant]: Anyone find out that I’ve been in here

[Examiner]:  No. That’s, we’ll talk, ask you to talk to me about concerns, I’ll talk to you about that in a moment.

[Applicant]: So, if they got arrested, will I, will they know it’s come from me?

[Examiner]: No. That won’t happen and we’ll control the, and I’ll control access to the information you give to me.

[Applicant]: Okay.

[Examiner]:  Also and we’ll talk to you about whether or not any of this information can be used in any prosecution of yourself and I’ll give you those protections. You might also be worried as to whether or not what you say to me here is then going to be produced in a court,

[Applicant]: Yeah

[Examiner]: It’s evidence against somebody else,

[Applicant]:  Yeah

[Examiner]:  And the answer to that is no, it will not

[Applicant]:  Okay

[Examiner]:  If somebody wants you to give evidence against somebody else

[Applicant]:  I can’t

[Examiner]:  Then Investigators will come and talk to you and ask whether or not you’re prepared to,

[Applicant]:  Yeah, I can’t do that

[Examiner]:  Right. Well that’s a matter for the Investigators,

[Applicant]:  Okay”

32. The oath was then administered, and the Examiner gave a lengthy explanation of the privilege against self-incrimination conferred by the ACC Act. He then said:

“And it’s not going to be produced as evidence against you. I want you to be aware that at the end of this hearing, I’m going to make a direction that will prohibit the publication of these proceedings otherwise than in accordance with the terms of directions which I will make at the end of the hearing. Now that effectively means, no one will get access to the information that you give to me tonight unless I authorise that access. There is a qualification to that and it’s this. The Chief Executive Officer of the Australian Crime Commission may in writing vary or revoke a direction that I make but he is prohibited from varying or revoking my directions if a consequence of him making that variation might mean that it might prejudice the safety of some person or it might prejudice the reputation of some person or if it might prejudice the fair trial of a person who has been or may be charged with some offence …”

33. After some further preliminary matters in which the Examiner again assured the applicant of the security and confidentiality of the proceeding, Ms Austin, as counsel assisting, examined the applicant. The following is recorded:

“Ms Austin:  Perhaps I and we can work through it with you, but could I ask, could I start by saying can you please tell us the story of your role in the events which culminated today and with you coming into the ACC tonight.

Applicant:  And this is going to go no further?

…

Examiner:  No, it’s, everything that I talked about,

Applicant:  Yeah

Examiner: And explained to you starts to operate now.”

34. The applicant then answered a number of questions and the examination went on for some time. It is not appropriate here to say very much about the content of the examination. It is sufficient to say that questions directly touching on the importation the subject of the operation, in which the applicant was suspected of being involved, were asked and answered, and that some of the answers were capable of incriminating the applicant.

35. Towards to the end of the examination the following is recorded:

“Examiner:  But I’ve said to you nothing that you will say here is ever going to be able to be used in a court.

Applicant:  Okay

Examiner:  So, it means that in relation to yourself, if you’re ever going to be taken down for being involved in this,

Applicant:  Yeah.

Examiner:  It will have to be as a result of evidence that the Police get from other sources

Applicant:  Okay

Examiner:  They’ll never be able to do it as a result of here

Applicant:  Okay

…

Applicant:  I just can’t let anyone know it was me that was talking in here

Examiner:  Well, you’re not going to be talking, what you say in here, stays in here

…

Examiner:  What you might do to the cops outside in terms of that investigation is a matter for them.”

36. The transcript records that the Examiner finished by saying:

“Alright. I’m going to therefore make directions that are going to restrict access to the witness’ state evidence [sic] to members of the staff of the Australian Crime Commission. Now, so you’re aware, the affect [sic] of this direction is that I’m only authorising members of the staff of the Australian Crime Commission to have access to the transcript of your evidence … Now, I do want you to understand that this particular investigation has been a joint operation between the Australian Crime Commission and the Australian Federal Police … that means there are certain members of the Australian Federal Police who are part of the staff and who will be aware of these discussions … But what I’ve said to you about the protections you’ve got are absolute protections and they don’t get varied …

Applicant:  So no one will know it’s me that’s talked.

Examiner:  No. Then those members of the AFP who are members of the staff of the Commission will know what’s been said but what you say here can’t ever be taken from here and produced in a court … as some evidence against you … That the police who are investigating this will have to find out, find evidence from other sources.”

37. Examiner Hannaford gave a direction under s 25A(9) of the ACC Act that is recorded in the following terms:

“I direct that the evidence given by [the applicant] the contents of the documents and the description of the things produced to [the ACC] during this Examination [sic]. Any information that might enable [the applicant] to be identified and the fact that [the applicant] has given evidence at this Examination shall not be published except to the Chief Executive Officer, the Examiners and members of the staff of [the ACC]. [The ACC] Chief Executive Officer or his delegate may vary or revoke this direction in writing but must not do so if it might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence. Publication in contravention of this direction is an offence punishable under the provisions of [the ACC Act]. Now, the fact of that direction in relation to yourself is that you’re not at liberty to tell anyone that you’ve been summoned to appear before [the ACC].”

It is apparent that the last sentence, at least, was spoken directly to the applicant. What would not have been apparent to the applicant (notwithstanding the acknowledgement in the first paragraph of the passage extracted at [36] above), or, indeed, to anybody more sophisticated, was that the AFP officers involved in the operation and investigating the very offence with which the applicant was subsequently charged, were included, by reason of their co-option as ACC staff members, in those to whom the information given by the applicant could be published.

38. At about 1.45am the following day Federal agents met the applicant at the ACC offices, and, with other Federal agents, escorted him back to AFP headquarters where he was informed that he was under arrest.

39. Federal Agent Gresham cautioned the applicant and then said:

“Your right to contact a friend, relative or legal practitioner is suspended as police are still conducting inquiries and I suspect such contact may aid other persons involved in this investigation. If possible, you will be given the opportunity to contact a friend, relative or legal practitioner at a later time.”

(FA Gresham’s statement makes clear that, in doing as he indicated he had, he believed that he was acting under a power conferred by s 23L of the Crimes Act.)

40. At 2.33am Ms Austin emailed a number of individuals, referring to the examination, and giving a summary of the “intelligence provided by” the applicant. She noted that prior to the start of the examination the applicant had informed the ACC that he could not read properly, and that, therefore, the relevant documents had been read to him. She added:

“… it was made clear during the examination that intelligence obtained during the course of the examination would not be used against the witness in criminal proceedings. The protection available under the ACC Act was made and accepted. Publication was restricted to ACC CEO, staff and Examiners.”

41. At 12.43pm that day, FA Mansfield emailed FA Austin asking when he would be able to obtain a transcript of the examination. FA Austin replied that he would “chase the disc” that day. He did so, in a series of emails, eventually asking FA Mansfield to contact Ms Austin, which FA Mansfield did at 5.08pm, saying:

“We’d like the dissemination to the AFP to advance our investigation into those involved in the importation attempt to possess cocaine”

and:

“We would seek to rely on information provided in the hearing to support applications for special projects”

42. Five days later, at the request of FA Mansfield, and, acting as delegate of the CEO of the ACC, Ms Philippa De Veau varied the terms of the non-publication direction. The variation was relevantly in the following terms:

“3  Subject to paragraph 5, the information set out in paragraph 1 above may only be published:

(a)  in any form to the Chief Executive Officer, examiners and members of the staff of the ACC;

(b)  in the form of a transcript to the Australian Federal Police (and staff thereof); and

(c)  in the form of relevant extracts from the transcript to any court or tribunal (including the staff thereof) in the course of an application for warrants under the Telecommunications (Interception and Access) Act 1979, the Surveillances Devices Act 2004 (Cth) and the Crimes Act 1914 (Cth), provided that such courts be asked to restrict access to any document including such extracts so as to minimise any risks to the witness that might arise from wider disclosure.

4  Subject to paragraph 5, the summary information referred in to paragraph 2 above may only be published:

(a)  the persons listed in paragraph 3(a) and (b); and

(b)  the NSW Police Force, the Australian Federal Police, the NSW Crime Commission and the Australian Customs and Border Protection Service (and staff of those agencies);

in the course of confidential briefings, or included in classified intelligence reports to be given to those bodies.

5  Publication of the information and summary information is subject to the following:

(a)  the restrictions on use in ss 33(5) of the ACC Act;

(b)  it may not be publicly released;

(c)  it may not be considered as part of an adverse administrative action without prior consultation with the ACC.” (underlining, italics and bold in original)

43. Ms De Veau had authority to vary the Examiner’s direction by s 25A(10) of the ACC Act. The applicant was not given notice of this variation.

44. Following the examination AFP officers involved in the operation continued their inquiries. They obtained a statement from the driver. The other employee was summonsed to appear at a compulsory examination of the NSWCC. (It is to be remembered that the NSWCC was a party to the Joint Agency Agreement.) Investigations were made into the applicant’s air travel, and revealed that he had travelled on an occasion and in circumstances that linked him to others connected with the drug importation.

The judgment of Charteris DCJ

45. Although the decision the subject of the present application is that of Woodburne DCJ, it is necessary to have recourse to the anterior decision of Charteris DCJ. That is because Woodburne DCJ (at least in part) built her approach on the factual findings and conclusions of Charteris DCJ.

46. Charteris DCJ accepted that, following the dissemination of the transcript of the examination to the AFP, the AFP obtained further evidence that fell into three categories:

• the statement from the driver;

• the evidence of the other employee in the NSWCC; and

• the evidence of the applicant’s air travel to Sydney .

This, it was accepted, was evidence of the kind known as “derivative evidence”, that is, obtained as a consequence of information provided in a compulsory examination.

47. The issues before Charteris DCJ were those posed by s 138 of the Evidence Act. That section deals with the admissibility of evidence that is obtained improperly or unlawfully (s 138(1)(a)), or as a consequence of impropriety or unlawfulness (s 138(1)(b)). Such evidence is, by sub-s (1), not to be admitted unless (the judge finds) the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way the evidence in question was obtained.

48. Sub-section (3) of s 138 sets out, non-exhaustively, matters to be taken into account in the sub-s (1) determination, one of which (sub-s (3)(e)) is whether the impropriety or illegality was deliberate or reckless.

49. The questions before Charteris DCJ were, therefore:

(i)  was any category of the derivative evidence obtained improperly?

(ii)  was any category of the derivative evidence obtained unlawfully?

(iii)  was any category of the derivative evidence obtained as a consequence of impropriety?

(iv)  was any category of the derivative evidence obtained as a consequence of illegality?

if any of (i) to (iv) was answered affirmatively:

(v)  did the desirability of admitting the evidence outweigh the undesirability of admitting evidence so obtained?

50. His Honour considered that, as early as the encounter with the applicant at the address where the applicant has parked the vehicle, the AFP had more than adequate evidence to arrest and charge the applicant, that there was no basis for thinking that the issue of a summons might have been a preferable means of securing his court attendance, and that it was “extremely surprising” that the applicant was not arrested at that early stage. He concluded that, well before the applicant’s arrival at AFP headquarters, the officers had formed an intention to arrest him, and that he was not free to leave. He found that AFP officers believed, at that time (correctly) that it would not have been lawful for the ACC to examine a person who was under arrest. He referred to the “undue haste” with which the events proceeded. He noted the evidence that, ordinarily, a person summonsed to an examination with ACC is given three days’ notice in order to enable him or her to seek legal advice, and that no explanation had been forthcoming for the urgency with which the applicant was brought to examination. In this context, he noted the speed with which FA Mansfield subsequently sought access to the transcript of the examination. (Two things may be noted about this. First, FA Mansfield was expressly identified as one of the persons authorised to be present at the examination. Second, as a member of Operation Polaris, FA Mansfield, and all other AFP officers involved in Operation Polaris, were included in those to whom the applicant’s evidence could, by the Examiner’s direction, be published. It is therefore a reasonable inference that when FA Mansfield requested from the CEO of the ACC a variation of the Examiner’s non-publication order, what he sought was wider dissemination of the evidence, to the AFP generally.)

51. The observations recorded in the previous paragraph require some explanation. The issue under consideration by Charteris DCJ was whether the AFP officers acted improperly or illegally in arranging to bring the applicant before the ACC Examiner in the circumstances in which they did. That is the question raised by s 138(1)(a) of the Evidence Act. Section 139 expands on what constitutes impropriety. By s 139(1) evidence of a statement made by a person during questioning is taken to have been obtained improperly if the person was under arrest at the time of questioning, the questioning was conducted by an investigating officer who was at the time empowered to arrest the person and the investigating officer did not give an appropriate caution. Further, by sub-s (5), a reference to a person “who was under arrest” includes a reference to a person who is in the company of an investigating officer for the purposes of questioning if the investigating officer believes that there is sufficient evidence to establish that the person has committed an offence the subject of the questioning, or the investigating officer would not allow the person to leave if the person wished to do so or the investigating officer has given the person reasonable grounds to believe that he or she would not be allowed to leave if he or she wished to do so.

52. Section 139 was not directly applicable, if only because the questioning of the applicant was to be carried out by an ACC examiner, and not by an officer of the AFP. However, it is clear that Charteris DCJ regarded the decision of the AFP officers not to arrest the applicant as a means of circumventing any right the applicant had to decline to answer questions. In this respect, he considered that the AFP officers had anticipated the decision of the High Court in X7 v ACC.

53. Charteris DCJ noted that the email exchanges concerning the proposed examination between the AFP and ACC all took place before the AFP went to the address where the applicant had parked the vehicleand, although he did not say so explicitly, he appears to have concluded that those exchanges indicated that, even at that point, the AFP officers intended to facilitate bringing the applicant before the ACC, and that their forbearance to arrest was a device to avoid any adverse consequences for their investigation and, in particular, their desire to have him examined.

54. He made reference (without express criticism) to the variation Ms De Veau made to the Examiner’s direction, allowing dissemination of the transcript to the AFP generally.

55. He described as “an extraordinary circumstance” the fact that AFP officers actively involved in the investigation of the charge against the applicant (that is, members of the operation) were permitted to be “present” at the examination, by being in an ante room with streaming facilities.

56. His ultimate conclusion (on the first leg of the s 138 decision) was that the conduct of the AFP officers was “improper”; he considered that the impropriety was “deliberate, not reckless”. He was more reserved about the conduct of the ACC, although he expressed concern. He noted that the ACC Act contemplates that a person subject to compulsory examination is entitled to have legal advice and representation, and that, by the haste in which the AFP and ACC officers acted, the applicant was denied a reasonable opportunity to obtain that advice and representation. He considered “the extraordinary urgency” to be a matter of concern.

57. He considered the decision by FA Gresham purportedly under s 23L of the Crimes Act (to suspend the applicant’s rights to legal advice) to be “unlawful”. It is unnecessary to go into the details of why the decision was unlawful; it was not contended by the Director that that conclusion was erroneous. (In this respect, I note that that decision to suspend the applicant’s rights was made after the examination, and cannot be considered to have been a material factor in any decision made by the applicant – the fact is that the applicant was denied his right to legal representation, whether by s 23L or otherwise may not matter.)

58. He noted that the examination took place in the middle of the night, at a time when the applicant may not have been functioning at his best.

59. The conclusions of Charteris DCJ may be summarised as follows:

(i)  the only reason the applicant was not arrested when spoken to at the address where the applicant had parked the vehicle was to enable the AFP “to explore the prospect of having him urgently examined at the ACC”. The AFP officers believed that, once he was charged, the applicant could not be interviewed and that, therefore, taking him to AFP headquarters while not under arrest was a contrivance to enable them to take advantage of a compulsory examination;

(ii) in acting in “the extraordinary haste” that they did, the AFP officers deprived the applicant of the right, expressly contemplated by the ACC Act, to legal representation;

(iii) the purported suspension of the applicant’s rights under s 23L of the Crimes Act was unlawful; and

(iv)  the conduct of Ms De Veau, in varying the confidentiality orders, while not unlawful, nevertheless provided the AFP with “an extraordinary advantage” in having the applicant’s answers in the examination available to them, contrary to the assurances given to the applicant by the Examiner.

60. However, as Charteris DCJ recognised, s 138 of the Evidence Act does not have the effect that any evidence illegally or improperly obtained is necessarily inadmissible. His Honour turned his attention to the second leg of the s 138 decision, whether the evidence should be excluded.

60. He accepted evidence that each of the three lines of inquiry in question would, in all probability, have been pursued by investigating officers who, accordingly, did not, by the impropriety, obtain any evidence that they otherwise would not have had.

61. He therefore reached the determination set out above, that the evidence was admissible. As indicated above, that determination is not here in issue.

The judgment of Woodburne DCJ

63. The application before Woodburne DCJ, with which the present proceeding is concerned, was for permanent stay of the prosecution of the applicant. The issues for determination were not identical to those before Charteris DCJ. However, her Honour (appropriately) proceeded on the basis of his Honour’s findings of fact and conclusions. Some additional evidence was adduced, including the transcript of the applicant’s examination, which had not been before Charteris DCJ.

64. The proposition put to Woodburne DCJ was that a trial in which the “derivative evidence” was available to investigating police and the prosecution would be “irreparably unfair”.

65. Woodburne DCJ identified 11 aspects of the conduct of the AFP and ACC officers said on behalf of the applicant to create “irreparable prejudice to the capacity of the applicant to have a fair trial”. As a separate matter, the applicant argued that, in the circumstances, any trial would be an abuse of process “in the sense that the use of the Court proceedings brings the administration of justice into disrepute”.

66. The eleven factual matters fall into a number of categories. One category could be characterised as a level of deviousness in the officers of both the AFP and the ACC in the manner in which the applicant’s attendance at the ACC for examination was secured. That included the deliberate delay of the arrest of the applicant, notwithstanding that the officers were in possession of ample evidence with which to arrest and charge him, for the specific purpose of having him available for examination. Another may be characterised as a cavalier disregard of the applicant’s rights; proceeding with undue haste to the examination in such a way as to circumvent the applicant’s rights (expressly provided in s 25A(2)) to legal representation in the examination; questioning of the applicant with respect to the conduct the subject of the charge (although it is to be recalled that, at the time of questioning, the applicant had neither been arrested or charged); and the suspension, in purported reliance on s 23L of the Crimes Act, of the applicant’s right of access to legal representation (although this occurred subsequently to the examination). Another category of behaviour of which complaint was made was what was described as misleading assurances given to the applicant by the Examiner concerning the availability of the evidence given by him to anybody other than ACC staff. A significant category was alleged unfairness in the process, in various ways, such as participation in the process by the very AFP officers investigating the applicant’s involvement in the drug importation, and the subsequent variation, by Ms De Veau, of the restricting order so that the content of the examination could be disseminated more widely to the AFP, this without the applicant’s knowledge.

67. The case put to Woodburne DCJ was that each of these circumstances, individually, would “satisfy the test for permanent stay …”.

68. Woodburne DCJ appears to have accepted Charteris DCJ’s characterisation of the conduct as amounting to impropriety but concluded, correctly, that “automatic results do not follow” from “antecedent improper conduct”, and that such a finding calls for an assessment of the effect of the impropriety. She disposed of the complaint that the applicant had been directly questioned about his participation in the offence by noting that evidence of anything he said would be inadmissible on his trial and would not be admitted by the trial judge. She also took into account that there had been no dissemination of the evidence to the Director as the prosecuting authority, and that a decision had been made to instruct a separate legal team for the purposes of the voir dire and stay proceedings, in order to avoid contamination of the trial prosecution team.

69. Her Honour turned her attention to the “derivative evidence” – that concerning the employees of the terminal to which the container had been taken and the applicant’s air travel – and accepted, as had Charteris DCJ, that the evidence would, in any event, have been obtained.

70. Somewhat puzzlingly, she considered that a measure that could be taken to guard against prejudice to the applicant was an order excluding that evidence. She did not consider it to be in the interests of justice to make such an order. (This is puzzling because that is the very application that was made to, and rejected by, Charteris DCJ. The rejection was, as indicated above, binding on a trial judge unless the trial judge formed the view that it would not be in the interests of justice for the order to be binding.)

71. Her Honour also considered it inappropriate to stay the proceedings:

“… on the basis of some unspecified general taint arising from dissemination of the examination transcript or of its content to the AFP.”

72. Her Honour then said:

“It has been strongly submitted on behalf of the applicant that he can no longer run a meaningful defence.”

and:

“It is true that the applicant will be deprived of having Mr Thangaraj SC of senior counsel represent him in circumstances where Mr Thangaraj SC represented him at the committal. That is indeed a loss the Court has not overlooked. The applicant will be deprived of counsel of his choice and of counsel of high standing and known competence.”

73. Her Honour declared herself satisfied that the applicant could in fact put the Crown to proof of what she said was likely to be the central issue, that is the knowledge of the applicant at the time he took possession of the bags. In respect of the inability of senior counsel to represent the applicant, she said:

“Such loss will not, however, I am satisfied preclude the applicant from mounting a meaningful defence in facing a criminal charge of the present nature.”

74. She noted that an important part of the applicant’s case was that he was, by reason of the compulsory examination, precluded from giving evidence at this trial and considered that to be a significant matter. This was put to her Honour on the basis that the applicant would expose himself to prosecution if his evidence was inconsistent with the evidence given to the ACC. Her Honour concluded that if the applicant was precluded from giving evidence, this was not because he was examined, but rather because his evidence would not assist his case, and, in any event, counsel for the applicant was still able to put the Crown to proof on various aspects of its case.

75. Finally, her Honour dealt with the separate argument to the effect (as I understand the submission) that the culmination of the devious or improper conduct on the part of AFP and ACC officers was such that a trial that ensued would be an abuse of process. Her Honour dealt with this by saying:

“There is a substantial public interest in the Court exercising its jurisdiction to determine whether a person charged with a criminal offence is guilty or not guilty. Such public interest should not be foregone in order to punish the AFP or the ACC officers for their conduct at the time at which it occurred …”

Her Honour referred to R v X [2014] NSWCCA 168 at [18].

76. Accordingly, her Honour declined to order a stay of the trial.

The proposed grounds of appeal

77. Despite their length, and the length of this judgment, it is necessary to set out in full the grounds upon which the applicant seeks leave to appeal. They are:

“1)  Ground One – Her Honour erroneously prejudged the outcome of [the applicant’s] permanent stay application;

2)  Ground Two – In the alternative, Her Honour erred in failing to sufficiently consider that a misuse of Court processes by law enforcement officials is, in and of itself, sufficient grounds for a permanent stay.

3)  Ground Three – Her Honour took into account irrelevant matters in adjudicating the stay application;

4)  Ground Four – Her Honour erred in failing to find that the abrogation of [the applicant’s] right against self-incrimination, and right to silence were sufficient violations of his rights to warrant a permanent stay;

5)  Ground Five – Her Honour erred in failing to find that the ACC engaged in misconduct;

6)  Ground Six – Her Honour erred, as she did not consider the failures of the ACC to protect [the applicant’s] procedural rights during the examination;

7)  Ground Seven – Her Honour erred in her adjudication of the extent to which [the applicant] would suffer unfairness, if his matter were to proceed to trial; and

8)  Ground Eight – Her Honour erred by failing to order a permanent stay.”

At the hearing, Ground 4 was amended to include the words “and denial of access to a lawyer” after “right to silence”.

Ground 1: pre-judgment

78. I did not find it easy to follow the applicant’s submissions in support of this ground. After citing some uncontroversial authorities as to what constitutes pre-judgment, the applicant made four points, intended to demonstrate pre-judgment. The first point extracted the passage from the judgment in which Woodburne DCJ observed that an application for stay ought not to be made unless and until an application to exclude the evidence in question is made.

79. That is no more than a way of stating the conventional proposition, that permanent stay is a last resort, a proposition that emerges clearly from the cases: see, for example, X7 v R (NSWCCA) at [91]-[93] and [109]. All measures short of a permanent stay should be exhausted before such a remedy is granted. It could scarcely be contemplated that a stay could or would be granted, on the ground of evidence said in some way to be tainted, before the admissibility of the evidence was considered and determined.

80. Moreover the observation is irrelevant because the applicant did in fact seek exclusion of the evidence, unsuccessfully. However, what her Honour said is no indication of pre-judgment.

81. The second point made on behalf of the applicant under this ground is that the “logic is … unhelpfully circular” because her Honour had already held that the applicant would fail in any application for exclusion of the evidence. Presumably this is a reference to the sentence that reads:

“I do not consider it to be in the interests of justice to make such order in this case.”

82. Both the observations of Woodburne DCJ and the arguments on the application are curious. They overlook, or ignore, the fact that the applicant did seek exclusion of the evidence, and failed to achieve that. Moreover, the determination of Charteris DCJ was (subject to a trial judge being otherwise satisfied) binding on the trial judge. These observations are more fully considered under Ground 3.

83. The applicant appears to have set considerable store on the sentence extracted above, in which Woodburne DCJ said that she did not consider it in the interests of justice, in this case, to make an order excluding the evidence. It seems to me that the applicant overstates the import of the comment. What her Honour said was plainly related to the circumstances as they were before her, at that time. It had no binding effect on a future trial judge, and (contrary to the submission then made on behalf of the applicant, that the effect of the observation was that an application for stay must always fail unless an application for exclusion of evidence had first been made) did not purport to be of general application.

84. The applicant’s third point under this heading is that because an application for the exclusion of the evidence would be made in a trial, and because the permanent stay was intended to prevent the trial commencing, the remark that such a step should be taken revealed that Woodburne DCJ had already prejudged the outcome of the stay application. Similarly to the first point made under this heading, this submission misunderstands that Woodburne DCJ’s comments went no further than to correctly state that a permanent stay is a remedy of last resort. Further, I reject the proposition that an application to exclude evidence could only be made at trial and that this prerequisite will defeat the purpose of an application for a permanent stay. As happened in this matter, applications for exclusion of evidence can be and are made in advance.

85. The final point made by the applicant under this heading is that because Woodburne DCJ declined to make an order excluding the evidence, this “strongly implies that her mind was closed to any possibility that the Applicant could succeed in his application for a permanent stay, given it is a more significant remedy”. The point is misconceived. Her Honour made those comments in the process of giving reasons for her decision not to order a permanent stay of proceedings. That her Honour had come to a view of the extent to which the applicant was able to satisfy the requirements for various remedies formed a part of this process. This does not disclose pre-judgment of an application for which she was delivering judgment.

86. Further, the submission proceeds on the proposition that the legal tests for the exclusion of evidence and for a permanent stay are sufficiently similar so that an opinion on the availability of one remedy gives rise to a necessary opinion on the other. An application to exclude evidence under s 138 of the Evidence Act requires a court to balance the probative value of evidence against any impropriety in the manner in which it is obtained. An application for a permanent stay, as outlined above, is concerned with protecting the court’s processes, the administration of justice and the fairness of a trial to the accused (see Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42). Those exercises require the court to consider sufficiently different questions.

87. I would reject this ground of appeal.

Ground 2: asserted misuse of court processes

88. In support of this ground, the applicant relied principally on statements of the High Court in Jago v The District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 and Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50. The general principle that can be extracted from these decisions is that the courts will not allow themselves to be used as a instruments of injustice.

89. However, further examination of the cases where the principle has been advanced in order to justify permanent stay of criminal prosecutions shows that, in practice, a very high bar is set. That, no doubt, reflects a view of the importance of bringing criminal offenders to justice. It also recognises (as did Woodburne DCJ) the capacity of trial courts to take steps to ameliorate any unfairness. The proposition that Woodburne DCJ failed to give adequate consideration to “the misuse of court processes” cannot be sustained. While (on the basis of the judgment of Charteris DCJ) the conclusion that the AFP officers consciously and deliberately engaged in conduct that enabled them to have access to information from the applicant, information they would not have been able to obtain directly from him once he was charged, was available, it was, as Charteris DCJ also accepted, information that they would, in the ordinary course, have obtained in any event. In those circumstances, admission of evidence obtained by a short cut, even involving a level of deviousness, is not suggestive of a court allowing itself to be used as an instrument of injustice.

90. The somewhat cavalier conduct of the AFP and ACC officers ought not to be overlooked. Whether it is such as to result in a permanent stay of a serious criminal prosecution is another question altogether. It is not, as was pointed out on behalf of the applicant, a question of punishing the AFP or ACC officers by staying the prosecution. It is a question of balancing the misconduct against the drastic consequences of a permanent stay.

91. It is not correct to say, as the applicant seeks to say under Ground 2, that her Honour failed sufficiently to consider that balancing exercise. She gave a number of reasons why a stay should not follow from the impropriety exposed by Charteris DCJ. These were the inadmissibility in a trial of any evidence given by the applicant in the examination of his direct involvement, the absence of dissemination to those responsible for prosecuting the applicant, and that the impropriety that yielded the “derivative evidence” was not the only route to obtaining that evidence, which would have been obtained anyway. She did not overlook the impact on the strategy to be adopted by the applicant in the trial. She balanced these, and considered, in effect, that the ameliorative measures that could be taken were adequate to overcome any effect of the impropriety.

92. I would reject this ground of appeal.

Ground 3: irrelevant considerations

93. Although the applicant’s written submissions opened with the assertion that Woodburne DCJ took into account “numerous irrelevant factors”, it is not easy to discern how that is supported by what follows. The written submissions identified the following as asserted “irrelevant considerations”:

“52  First, that Federal Agents be cross-examined. This is addressed in Ground 1. There is no need to repeat that argument.

[There is no reference in the argument addressed to Ground 1 that deals with the suggestion that any detriment to the applicant could be remedied by cross-examination of the federal agents.]

53  Second, her Honour’s suggestion that a voir dire be conducted to ventilate issues in relation to derivative evidence further. In her Honour’s view, this negated the need for a stay. With regard to travel arrangements, her Honour concluded that ‘it does not seem to the court likely that such evidence would be amenable to a suggestion of being tainted by anything any AFP officer might have had to say to any witness producing the relevant documents. However, there is nothing to preclude that prospect being explored on a voir dire.’

54  It was not open to her Honour to conclude that evidence on travel arrangements … could not be tainted, without explaining why Charteris SC DCJ had erred in his conclusion … that [certain parts of] the evidence were ‘derived’ from the ACC examination.

55  Third, her Honour’s opinion that Kelly Mansfield not giving evidence was ‘unfortunate’, and this should occur in a voir dire.” (italics in original)

94. As I have interpolated in par 52 of the submission, extracted above, the suggestion that the Federal Agents could be cross-examined was not the subject of the submissions made under Ground 1, and its precise import is unclear. It may be that it is intended as part of what appears in the following paragraph, concerning the availability of a voir dire procedure to determine the admissibility of the evidence.

95. I have earlier described above the observation of her Honour that the applicant could seek exclusion of the “derivative evidence” as “curious”, because precisely such an application was made and failed. It did remain open to the applicant under the proviso to ss 130A and 139 of the Criminal Procedure Act, to seek exclusion by the trial judge, in the hope that he or she might reach the requisite level of satisfaction. On balance, however, it seems to me that the observation was irrelevant, if not incorrect. It remains to be seen what effect such an irrelevancy had on the outcome.

Ground 4: abrogation of the right of self-incrimination, the right to silence, and denial of access to lawyers

96. This ground can be adequately disposed of by noting that no error of the kind specified in House v The King has been identified; rather, the submissions attack the conclusion reached by her Honour in the exercise of her discretion. However, I make the following observations.

96. The first right of the applicant said to have been abrogated in such a way as to warrant permanent stay of his trial was the longstanding (at common law) right to silence and corresponding privilege against self-incrimination. It is correct that the applicant was compulsorily examined, and that failure on his part to answer questions put to him in the examination could or would have exposed him to penalties: ACC Act, s 30.

97. Two things stand against the consequential proposition that that of itself was sufficient to warrant permanent stay. The first is that the real question is (again) a question of the admissibility of evidence obtained derivatively following compulsory acquisition. The second is that the High Court has accepted, in Lee v The Queen, that where a compulsory examination has taken place at a time when the laying of a charge was imminent (as here) a subsequent trial may be fair and according to law provided the answers given under examination have not been disseminated to the prosecution lawyers (discussed further at [122]-[127] below). There was no such dissemination in this case (see [68] and [91] above). It has been mentioned at [5] above that Lee v The Queen was decided upon examination provisions of the NSWCC Act. The substantial similarity of those provisions to the sections of the ACC Act engaged in this case is noted at [122] below.

98. The High Court in Lee v The Queen did not hold that provisions in the NSWCC Act equivalent to the examination provisions of the ACC Act give no authority for compulsory questioning of a person about to be charged. In R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8 six justices drew a distinct line at the point of a charge being laid ([43]-[48]) and treated the majority in X7 v ACC as only having applied the Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 principle of statutory interpretation against a reading which would allow compulsory examination after commencement of the curial process; that is, after a charge had been laid: at [41].

99. The High Court in Lee v The Queen based its decision upon the failure of the NSW Crime Commission to enforce and give effect to its non-publication order under s 13(9), to prevent the examinee’s/accused’s evidence being given to Crown prosecution lawyers. In the present case, by not disseminating the applicant’s answers under examination to Crown lawyers the ACC averted unfairness in the trial of the applicant and prevented any compromise of the strictly accusatorial character of the proceedings on the charge. This negates Ground 4 for which the applicant seeks leave to appeal.

100. No doubt in recognition of these circumstances, the denial of the applicant’s right to legal advice and representation was added as part of the ground. As is clear from the statutory provisions extracted above, the ACC Act (s 25A(2)) contemplated that a person subjected to compulsory examination would, ordinarily, have access to legal advice.

101. It cannot be doubted that the apparently unseemly haste with which both the AFP and ACC officers arranged the examination had the effect of denying the applicant that access. As Charteris DCJ pointed out, no explanation was forthcoming for the speed and manner in which the examination was arranged.

102. In the consideration of this ground, once (for the reasons given above) the abrogation of the applicant’s right to silence is put to one side, the question must be whether the denial of the applicant’s capacity to have access to legal advice was, of itself, sufficient to warrant a permanent stay of the proceedings.

103. The answer is that it was not. What must be considered is the effect of that denial. Legal advice would not have altered the compulsion on the applicant to answer the questions put to him. A lawyer could be expected to have advised the applicant of his entitlement to claim privilege under s 30(4) of the ACC Act. But that advice was in fact given to him by the Examiner, and the Examiner gave him the benefit of that provision.

104. There was identified no consequence of the denial of the applicant’s access to legal advice that could justify permanent stay of the proceedings. It is possible that the denial of legal advice could be relevant to questions of the admissibility of evidence, although it is difficult to see that it could have any impact on any evidence other than the derivative evidence, which has already been dealt with.

Grounds 5 and 6: asserted misconduct by the ACC

106. The focus of Ground 5 is a passage in the judgment of Woodburne DCJ, in which her Honour restated the conclusion of Charteris DCJ that the AFP officers had engaged in misconduct by “contriving not to arrest the applicant so that he might be examined by the ACC” but went on to say that she was not satisfied that there was:

“…such wilful perversion of the ACC Act by officers of the ACC, or … that there was in fact an unlawful examination or dissemination.”

107. The applicant sought to demonstrate that the ACC was complicit in the misconduct of the AFP officers as found by Charteris DCJ. One discrete means by which he sought to do this was by asserting that the ACC had “violated” s 7C(3) of the ACC Act.

108. Section 7C is the provision which, inter alia, sets out the functions of the Board of the ACC. Sub-sections (2) and (3) respectively empower the Board to determine, in writing, that an “intelligence operation” is “a special operation” (sub-s (2)) or that an investigation is a “special investigation” (sub-s (3)). In each case, such a determination triggers the power of an examiner to conduct an examination under s 24A. In each case, before so determining, the Board is required to consider whether the methods of collecting the criminal information and intelligence not using the special powers given by the ACC Act have been effective (sub-s (2)), or whether ordinary police methods of investigation are likely to be effective (sub-s (3)). The clear import is that the special powers granted by the ACC Act are to be used where regular methods of investigation have been, or are likely to be, ineffective. By sub-s (4), a determination under either of the preceding sub-sections must contain certain specified information. It will be recalled that the Board of the ACC had determined that the investigation of which Operation Polaris was part was a “special operation”.

109. Before Woodburne DCJ, the applicant provided extensive written submissions upon which he also placed reliance in this Court. Put shortly, the point sought to be made by the applicant was that the examination of the applicant was a contravention of s 7C(3) because either (i) the ACC officers knew that the AFP could obtain the information sought from the applicant’s examination from other sources; or (ii) the ACC officers knew that it could not obtain that information from other sources and were complicit in the AFP’s misconduct. In either case, it was submitted, the requirements of s 7C(3) and s 7C(4) were not met. An extensive submission to the same effect was put in written submissions before Woodburne DCJ.

110. The submissions are entirely misconceived. Section 7C is not directed to the examination of any particular individual or witness. It is directed to the identification of an “intelligence operation” or an “investigation”, either of which may, on the appropriate requirements of sub-s (4) being met, be declared “special”, for the purpose of triggering the particular (and extensive) powers given by the ACC Act. There is no evidence that the proper procedures for those purposes were not taken in the determination that the intelligence operation that came to be known as Operation Polaris was a “special operation”. Section 7C(4) did not require that determination to consider the availability of “ordinary police methods of investigation” in order to obtain the information sought to be obtained from the applicant.

111. That was the major allegation of misconduct levelled against the ACC; it fails. A subsidiary matter concerned the conduct of the Examiner, although the submissions did not specify the respects in which misconduct was asserted against him. It may be assumed that the submissions were directed to the explicit assurances given to the applicant at the commencement of the examination, during its course, and repeated at the end, of the limited circulation of the applicant’s evidence. Woodburne DCJ did take this into account in her consideration.

112. Another aspect of asserted misconduct on the part of ACC was the decision of Ms De Veau to release the transcript of the applicant’s evidence to the AFP, beyond those AFP officers involved in Operation Polaris who had thereby become officers of the ACC. In fact, the applicant attacks that decision as “no decision at all” because, he asserts, it was done without due regard to the provisions of s 25A(11) which precludes variation or revocation of the confidentiality direction where such a variation or revocation:

“… would prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.”

113. In the submissions in this respect, on behalf of the applicant it was said:

“Ms De Veau admitted she did not know if she ever turned her mind to whether the AFP having access to the examination would strengthen the Crown case, whilst simultaneously also admitting she knew the benefit of the AFP having an examination is it would help to rule out certain defences.”

114. Only part of Ms De Veau’s oral evidence was included in the affidavit placed before Woodburne DCJ. In Ms De Veau’s cross-examination by senior counsel for the applicant, it was put to her that she appreciated that access to the transcript by AFP officers (presumably, those involved in his prosecution) would assist them to exclude potential defences upon which he might have relied. Ms De Veau’s answer was:

“I don’t know if it’s that straightforward. The transcript is relatively consistent with the witness summary. At the time I assumed that the facts as outlined by [the applicant] in his examination as to what had occurred were facts that were already available to the police on the basis that he’d been charged. There may have been an advantage, but I wouldn’t classify it as an unfair one as to what other leads were required to follow up to consider the involvement of other people in relation to activity in the transport yard.”

115. Later, she said she turned her mind to whether there was any unfair advantage to the AFP and formed a view that there was not.

116. Just what is sought to be made of this is unclear to me. It may be – although it is not clear to me that it is so – that the decision by Ms De Veau to release the transcript was, as a matter of administrative law, flawed. For the purposes of the stay application, what is significant is, not how the decision was made, but what the decision was. There is no doubt that Woodburne DCJ took into account the fact of the decision, and the release of the transcript. In the absence of dissemination to Crown prosecution legal personnel, Ms De Veau’s release of the transcript did not compromise the conduct of a fair trial according to law: Lee v The Queen.

117. In seeking to implicate the ACC in the AFP’s misconduct, the applicant placed reliance on the departure from the “norm” of giving three days’ notice to an intended examinee. That is not the way in which the haste with which the ACC proceeded to the examination was put at first instance. In this Court, the applicant repeated two paragraphs of the submissions made to Woodburne DCJ. The second is as follows:

“[111]  The evidence does not indicate the examination of the applicant occurred in the presence of a judicial officer. Rather, the examination was organised with significant rush, without a judicial officer, or respect to norms that indicated the applicant was to have 72 hours of notice.”

118. On analysis this submission was made under the heading of “Derivative use of evidence”. Paragraph 110 of the submissions referred to a passage in the judgment of Crennan J in Lee v The Queen, in the context of derivative use immunity. The applicant now appears to rely on the ACC’s abandonment of what he calls “the norm” in order to make a case that the ACC officers were complicit with the AFP officers in the hastily arranged examination. It may be that they were, but that was not the case advanced to Woodburne DCJ, and her Honour cannot be found to have been in error in not treating it as such. I would reject these grounds of appeal.

Ground 7: unfairness in the trial

119. It seems that the point of this ground is that, because the AFP police who will be witnesses in the applicant’s trial have had access to the transcript of this examination, the prosecution has gained an unfair advantage, and to an extent that cannot be properly measured, and that Woodburne DCJ failed adequately to take those circumstances into account. The unfair advantage was identified as:

(i)  that the applicant’s evidence could be used to forewarn prosecution witnesses and aid the prosecution’s preparation for cross-examination of the applicant in the event that he gave evidence; and

(ii)  that the examination might encourage investigators to pursue new lines of inquiry in order to strengthen the prosecution case.

120. The second has, in fact, come to pass, but has been dealt with by both Charteris DCJ and Woodburne DCJ, who accepted evidence (which was not challenged) that those lines of inquiry would have been followed in any event.

121. The first, forewarning prosecution witnesses, appears to have little practical impact in the present case, having regard to the transcript of evidence (which, for obvious reasons, should not be explicated).

122. The circumstances of this case are remarkably similar to those of Lee v The Queen. In that case, a trial had taken place, and the appeal was against the conviction of the appellants. The appellants had earlier been examined under compulsion (as provided by the NSWCC Act). Section 13(9) of that Act was in similar, if not identical, terms to s 25A(9) of the ACC Act. Section 13(5) of the NSWCC Act was in similar, if not identical, terms to s 25A(3) of the ACC Act.

123. Notwithstanding the provisions of s 13(9), the transcripts of the appellants’ examinations were provided to the prosecution authorities who passed them on to police. The High Court said:

“34  … The protective purpose of s 13(9) would usually require that the Commission quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the Commission to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not met in the present case, with the consequence that the appellants’ trial differed in a fundamental respect from that which our criminal justice system seeks to provide

…

43  … The appellants’ trial was altered in a fundamental respect by the prosecution having the appellants’ evidence before the Commission in its possession.”

124. The Court concluded that:

“51  The circumstances of this case involve the wrongful release and possession of evidence …”

125. Accordingly, the High Court set aside the convictions. However, they ordered a new trial. Although the Court did not make any order concerning the mode or conditions of a new trial, it had earlier commented that, had appropriate application been made, the trial judge could have ordered a temporary stay, while different prosecution personnel, not privy to the evidence in question, were engaged (at [44]).

126. It would, of course, in the circumstances have been open to the High Court to order a stay of further proceedings (see, for example, Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66). They stopped short of doing this. The High Court plainly envisaged that, despite the police involved in the investigation and prosecution having had access to the fruits of the compulsory examination, that fact did not preclude the potential for a subsequent trial to be fair.

127. The present case is no different. While I accept that a “clean” prosecution team can be engaged, the knowledge gained by the investigating police cannot be expunged from their minds. So it was in Lee v The Queen. Nevertheless, a new trial was ordered.

128. It will be necessary for the prosecution to satisfy a trial judge that the consequences of the dissemination of the applicant’s evidence is suitably quarantined from those conducting the trial. Steps have already been taken to that end.

129. I would reject this ground of appeal.

Ground 8

130. Ground 8 is an all-purpose ground that Woodburne DCJ erred in failing to order a permanent stay. It essentially relied on the matters advanced in support of the preceding grounds. I would reject it.

131. Since I have proposed rejection of all substantive proposed grounds of appeal, it follows that any appeal for which leave was granted would fail. For these reasons although leave to appeal was granted, the appeal was dismissed.

132. JOHNSON J: The reasons of Simpson JA reflect my reasons for joining in the orders made on 27 March 2017.

133. FAGAN J: I agree with the reasons of Simpson JA as also reflecting my own reasons for having joined in the orders of 27 March 2017.

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Amendments

06 March 2018 - Judgment republished in accordance with publication restrictions

Decision last updated: 06 March 2018