Macdonald v The Queen; Maitland v The Queen

[2016] NSWCCA 306

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Macdonald v R; Maitland v R [2016] NSWCCA 306

Hearing dates:

4 November 2016

Date of orders:

16 December 2016

Decision date:

16 December 2016

Before:

Bathurst CJ at [1]; R A Hulme J at [143]; Bellew J at [144]

Decision:

Grant the applicants leave to appeal;

Catchwords:

CRIMINAL LAW – appeal – criminal procedure – temporary stay of proceedings

STATUTORY CONSTRUCTION – principle of legality – whether the Independent Commission Against Corruption Act 1988 (NSW) abrogates the accusatorial principle such that compelled evidence given over objection in public hearings before ICAC may be made available to the prosecution prior to charges being laid

CRIMINAL LAW – appeal – whether findings of primary judge available on the evidence

Legislation Cited:

Australian Crime Commission Act 2002 (Cth)
Crime Commission Act 2012 (NSW)
Criminal Appeal Act 1912 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Mining Act 1992 (NSW)
New South Wales Crime Commission Act 1985 (NSW)

Cases Cited:

A v Maughan (2016) 50 WAR 263; [2016] WASCA 128
Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15
Duncan v ICAC [2016] NSWCA 143
Gillett v State of New South Wales [2009] NSWSC 421
Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jago v 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
Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71
R v Independent Broad-Based Anti-Corruption Commission (2016) 256 CLR 459; [2016] HCA 8
R v OC (2015) 90 NSWLR 134; [2015] NSWCCA 212
X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29
X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57

Category:

Principal judgment

Parties:

Ian Michael Macdonald (Applicant)

Representation:

Counsel:
S J Odgers SC / T S Corish (Applicant Macdonald)
D Jordan SC / E Kerkyasharian (Applicant Maitland)
N Williams SC / J E Davidson (Respondent)

Solicitors:
Bilbie Dan Solicitors and Attorneys (Applicant Macdonald)
Bob Whyburn Solicitors (Applicant Maitland)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/59940; 2015/59990

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2016] NSWSC 865

Date of Decision:

23 June 2016

Before:

Adamson J

File Number(s):

2015/59940; 2015/59990

HEADNOTE

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

The Independent Commission Against Corruption (ICAC) conducted an inquiry into the circumstances surrounding the grant of an exploration licence by former State Minister, Ian Macdonald (the first applicant), to a company associated with John Maitland (the second applicant). Both applicants were examined by ICAC, with evidence given subject to objection taken pursuant to s 37 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act). Section 37(3) states that evidence given at a compulsory examination or public inquiry is “not … admissible in evidence against the person in any civil or criminal proceedings”. Section 37(4)(a) makes an exception where the proceedings are for an offence against the ICAC Act and s 37(4)(b) makes an exception where the witness does not object.

Section 112 of the ICAC Act provides that ICAC may make a direction that evidence given before it shall not be published if it is satisfied that it is in the public interest. Section 18 provides that, if there are proceedings for an indictable offence before a court, ICAC must, to the extent it thinks necessary to ensure the accused’s right to a fair trial, conduct the investigation in private or give directions under s 112. Section 26 provides that an information statement or document that has been required to be produced under ss 21 and 22 may not be used in proceedings against the person. Section 31 provides that ICAC may conduct a public inquiry if it is satisfied that it is in the public interest to do so. A public inquiry is to be held in public (s 31(8)) unless ICAC considers it to be in the public interest that part of it be held in private (s 31 (9)). No direction was sought under s 112 and no challenge was made to the inquiry being held in public.

Section 14(1)(a) of the ICAC Act lists as a function of ICAC: “to gather and assemble … evidence that may be admissible in the prosecution of a person”. Section 15A of the Director of Public Prosecutions Act 1986 (NSW) (DPP Act) provides that law enforcement officers investigating alleged indictable offences have a duty to disclose to the Director of Public Prosecutions (DPP) all relevant information expected to assist the case for the prosecution or the accused. Under s 15A(6) they are not required to provide information the subject of a claim of privilege.

Transcripts of the public examination were uploaded to ICAC’s website following completion of the examination. ICAC’s report, published in August 2013, recommended that the advice of the DPP be sought as to whether the applicants should be prosecuted for their conduct the subject of the enquiry. Junior counsel for the Crown, Mr English, and the DPP solicitor with carriage of the matter, Mr Walkowiak, both downloaded the transcript and read portions of the applicants’ compulsory evidence.

On 7 October 2014, Mr Walkowiak provided written advice to the DPP, Mr Babb, concerning possible charges against Mr Macdonald for misconduct in public office as well as possible charges under s 87 of the ICAC Act. Section 87 makes it an indictable offence to knowingly give evidence that is false or misleading at a compulsory examination or public enquiry. The advice contained substantial extracts from Mr Macdonald’s statements at the public inquiry and references to his private compulsory examination. An advice was also provided to Mr Babb on 24 June 2014 by another DPP solicitor, which contained extracts from Mr Maitland’s private compulsory examination and public examination but did not relate to charges against him of accessory before the fact to misconduct in public office.

Mr Macdonald was charged with two counts of wilful misconduct in public office and Mr Maitland was charged with two counts of aiding and abetting the commission of those offences (the present charges). The applicants sought a stay of the proceedings until such persons who had access to the evidence given by them in the inquiry were no longer involved in the prosecution. The primary judge refused the stay.

In the context of considering Mr Babb’s evidence, the primary judge stated that the advices of 24 June and 7 October were not prepared with respect to the charges the subject of the proceedings (the par [84] finding). Her Honour accepted the evidence of Mr Babb that he did not use the compelled evidence to consider whether or not to press the present charges. She also accepted the evidence of Mr Walkowiak and Mr English that, to the extent they were able to do so, they had put the compelled evidence out of their minds, while acknowledging the possibility that the evidence had the potential to subconsciously influence them. Her Honour concluded that “the evidence relied on by the applicants goes only as far as to suggest that it is possible that Mr English’s advice and Mr Walkowiak’s requisitions for further investigations or evidence might have been affected by the compelled evidence” (the par [172] finding).

The issues on appeal were:

Whether, as a matter of statutory construction, the ICAC Act abrogates the accusatorial principle so as to permit evidence compulsorily obtained from the accused in a public examination, prior to him or her being charged, being made available to the prosecution prior to the charge being laid;

Whether the primary judge erred in making the par [84] finding;

Whether the primary judge erred in making the [172] finding;

Whether a temporary stay of proceedings should be ordered.

The Court held (Bathurst CJ, R A Hulme and Bellew JJ agreeing) dismissing the appeal:

Abrogation by ICAC Act of accusatorial principle

The limited operation of provisions in the ICAC Act which directly protect an accused’s right to a fair trial (s 18) and to not self-incriminate (s 26) are relevant in determining whether the legislation, when taken as a whole, intends to abrogate the accusatorial principle: [95] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

Once a public enquiry is ordered, it is difficult to see how the accusatorial principle can be maintained, the answers being in the public domain unless ICAC decides it is in the public interest to hold part of the inquiry in private (s 31(9)) or to make an order that publication of evidence shall be restricted in some way (s 112). Preservation of the accusatorial system of criminal justice may be relevant to the public interest but it is not a determinative factor: [96]-[97] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

Section 37 of the ICAC Act provides that answers given at an inquiry, if objection is taken, are inadmissible in any civil, criminal or disciplinary proceedings, it does not prohibit use being made of such evidence: [98] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

Section 14 of the ICAC Act does not contain a negative implication to the effect that material that is not admissible in the prosecution of a criminal offence should not be supplied to the DPP. It is a matter for the DPP to determine whether evidence supplied is in fact admissible: [103] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

The protection against admissibility conferred by s 37 of the ICAC Act does not constitute a privilege within the meaning of that expression in s 15(6) of the DPP Act. Section 37(2) in its terms abrogates the principle against self-incrimination and any other ground of privilege: [106] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

The ICAC Act by necessary intendment abrogates the accusatorial principle, at least in the circumstance of public examinations occurring before the examinee is charged, and substitutes for it the statutory protections contained in s 18 and s 112 (if ICAC determines that it is in the public interest to make such an order). In that circumstance it is open to ICAC to make the transcript of a public examination available to the DPP: [107] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

Par [84] finding

The primary judge’s comment that the advices were not prepared with respect to the current proceedings was explicable on the basis that she was referring to the fact that Mr Babb did not take the compelled evidence into account in considering the present charges as distinct from the charges under s 87 of the ICAC Act. This was not an error vitiating the exercise of her discretion: [120] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

Par [172] finding

The primary judge’s finding at par [172] that Mr English and Mr Walkowiak had put the compelled evidence out of their mind to the extent they were able to do so acknowledged the possibility that the evidence had the potential to subconsciously influence them. As such, the primary judge did not fall into error: [129]-[132] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

Temporary Stay

(Obiter) It is well established that the Court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the Court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness. However, a stay will only be granted to the extent necessary to relieve against unfair consequences: [140] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57; Redacted Judgment [2015] NSWCCA 281 considered.

(Obiter) There were no unfair consequences which would arise from permitting Mr Babb, Mr Walkowiak and Mr English to continue to participate in the prosecution. Even if the ICAC Act did not abrogate the accusatorial principle, a stay would not have been ordered: [141] (Bathurst CJ); [143] (R A Hulme J); [144] (Bellew J).

Judgment

1. BATHURST CJ: The applicant, Ian Michael Macdonald (Mr Macdonald), was charged on an indictment, presented on 8 May 2015, with two counts of wilful misconduct in public office arising out of the application for and subsequent grant to Doyles Creek Mining Pty Ltd of an exploration licence under the Mining Act 1992 (NSW).

2. The applicant, John William Maitland (Mr Maitland), was charged on the same indictment with two counts of aiding and abetting the commission of the offences by Mr Macdonald.

3. Prior to being charged, Mr Macdonald and Mr Maitland were publicly examined by the Independent Commission Against Corruption (the Commission) as part of an inquiry into the circumstances surrounding the grant of the licence. The inquiry arose as a result of a reference by both Houses of Parliament under s 73 of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act). Evidence was given subject to objection taken pursuant to s 37 of the ICAC Act, the effect of which was that, subject to the exceptions contained in that section, the evidence given under objection was not admissible in any civil or criminal proceedings.

4. Transcripts of the public examinations of Mr Macdonald and Mr Maitland were uploaded to the Commission’s website the day after completion of their examination.

5. In August 2013, the Commission published its report recommending that the advice of the Director of Public Prosecutions (the DPP) be sought as to whether the applicants should be prosecuted for their involvement in the grant of the licence. The same month, Mr Phillip English of counsel was briefed by the NSW Crime Commission to provide legal advice in relation to the matters arising from the ICAC report. It appears that Mr English was subsequently briefed by the DPP as junior counsel for the Crown in the prosecutions of Mr Macdonald and Mr Maitland.

6. For the purpose of providing his advice, Mr English downloaded the transcript of the evidence of Messrs Macdonald and Maitland onto his iPad and read part of it. He was also briefed with hardcopies and a disc containing the material, although he did not refer to them. On 21 May 2016, he deleted the electronic transcript and, on 23 May 2016, he arranged for the disc and hardcopy material to be returned to the DPP.

7. On 23 June 2014, Mr David Noll, then managing lawyer of the DPP’s ICAC Referral Unit, downloaded the whole of the transcript of the public inquiry from the ICAC website. In the same month, Mr Adrian Walkowiak (Mr Walkowiak) became the solicitor in the DPP’s office responsible for the carriage of the Macdonald and Maitland matter. Between June and October 2014, he read the evidence of Mr Macdonald and Mr Maitland in the public inquiry as well as evidence tendered at that inquiry which included extracts of the evidence in the compulsory examination of Messrs Macdonald and Maitland. Mr Walkowiak considered the material for the purpose of providing advice to the DPP and highlighted portions and made notes. Mr Walkowiak gave evidence that between June and July 2014 he was provided with two discs containing copies of the public inquiry transcript and exhibits.

8. Further relevant factual material and, particularly, the involvement of Mr Walkowiak was set out in the judgment of the primary judge, to which I have referred below.

9. By notice of motion filed on 9 May 2016 and 17 May 2016 respectively, Mr Maitland and Mr Macdonald sought an order that the proceedings be permanently stayed or, alternatively, that a temporary stay be ordered until such persons who had access to the evidence given by them in the inquiry are no longer involved in the prosecution. The basis of the application was that supply of that material to the prosecuting authorities, particularly indirectly to Mr Lloyd Babb (the DPP) and to Mr English and Mr Walkowiak, amounted to a departure from the accusatorial nature of the criminal justice system in a fundamental respect, namely, departure from the principle that the prosecution must prove the guilt of the accused person without assistance from that person (the accusatorial principle): see Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (Lee) at [31]-[32].

10. The primary judge declined to grant the relief sought. Messrs Macdonald and Maitland have sought leave to appeal from that decision pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). They also sought an extension of time within which to make such an application. No objection was taken to the application for extension of time and it should be granted.

11. The applicants no longer seek a permanent stay of the proceedings. Rather, the relief sought by them is in the following terms:

“i   A temporary stay of his trial until neither Mr Lloyd Babb, Mr Phillip English nor Mr Adrian Walkowiak is involved in the prosecution, including the decision to commence the prosecution.

ii   In the alternative, a temporary stay of his trial until neither Mr Phillip English nor Mr Adrian Walkowiak is involved in the future conduct of the prosecution.”

12. Prior to considering the reasoning of the primary judge and the submission of the applicants, it is convenient to make some reference to the relevant sections of the ICAC Act and the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act) which were the subject of the submissions on this appeal.

The ICAC Act

13. Section 2A of the ICAC Act sets out its principal objects. It is in the following terms:

“2A   Principal objects of Act

The principal objects of this Act are:

(a)   to promote the integrity and accountability of public administration by constituting an Independent Commission Against Corruption as an independent and accountable body:

(i)   to investigate, expose and prevent corruption involving or affecting public authorities and public officials, and

(ii)   to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public administration and on the community, and

(b)   to confer on the Commission special powers to inquire into allegations of corruption.”

14. The object of the legislation was described by Priestley JA in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 (Greiner) as follows (at 180):

“The law has always set high standards for official conduct. The fact that departures from the standards may have been unhappily frequent, difficult to detect and more difficult to prove, has not meant that the standards are low, but that they have been difficult to enforce. It was to deal with this situation that the Act was designed, and the Commission was given its formidable powers of investigation.

In my opinion however it is clear from the Act’s own terms that the Act’s investigative powers were and were intended to be, just that, and no more. That is, the Act was designed to bring into the light of day facts concerning the conduct of public officials upon which others would, in appropriate cases, pass final judgment. This would be done by courts or other tribunals possessing the power to make decisions affecting the rights of citizens. (I will call these ‘courts’.) The Act gave no power to the Commission to change or even pronounce upon the rights of any citizen in any legal sense. The Commission’s power is to find things out, make them public, and/or refer them to an appropriate authority; the law will then take its course.”

15. Sections 7 to 9 of the ICAC Act deal with the concept of corrupt conduct. It is not necessary to set out these sections in detail. Section 8 describes the general nature of corrupt conduct, while s 9 imposes a series of limitations on what can be found to be such conduct. Section 9(1)(a) is of relevance in providing that, despite s 8, conduct does not amount to corrupt conduct unless it could constitute or involve a criminal offence. The section must be read in conjunction with s 13(3A) of the ICAC Act which provides that a finding of corrupt conduct for the purpose of (relevantly) s 9(1)(a) can only be made if the Commission is satisfied that the person has engaged in conduct which constitutes a criminal offence. It is unnecessary to deal with the manner those two sections can be reconciled: see Duncan v ICAC [2016] NSWCA 143 at [155]-[165], [466]-[469].

15. Section 13 sets out the principal functions of the Commission. So far as relevant, it provides as follows:

“13   Principal functions

(1)   The principal functions of the Commission are as follows:

(a)   to investigate any allegation or complaint that, or any circumstances which in the Commission’s opinion imply that:

(i)   corrupt conduct, or

(ii)   conduct liable to allow, encourage or cause the occurrence of corrupt conduct, or

(iii)   conduct connected with corrupt conduct,

may have occurred, may be occurring or may be about to occur,

(b)   to investigate any matter referred to the Commission by both Houses of Parliament,

(c)   to communicate to appropriate authorities the results of its investigations,

…

(2)   The Commission is to conduct its investigations with a view to determining:

(a)   whether any corrupt conduct, or any other conduct referred to in subsection (1) (a), has occurred, is occurring or is about to occur, and

(b)   whether any laws governing any public authority or public official need to be changed for the purpose of reducing the likelihood of the occurrence of corrupt conduct, and

(c)   whether any methods of work, practices or procedures of any public authority or public official did or could allow, encourage or cause the occurrence of corrupt conduct.

…

(4)   The Commission is not to make a finding, form an opinion or formulate a recommendation which section 74B or 74BA prevents the Commission from including in a report, but section 9 (5) and this section are the only restrictions imposed by this Act on the Commission’s powers under subsection (3).

(5)   The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission’s power to make findings and form opinions:

(a)   findings that particular persons have engaged, are engaged or are about to engage in corrupt conduct,

(b)   opinions as to:

(i)   whether the advice of the Director of Public Prosecutions should be sought in relation to the commencement of proceedings against particular persons for criminal offences against laws of the State, or

(ii)   whether consideration should or should not be given to the taking of other action against particular persons,

(c)   findings of fact.”

17. Section 14(1) deals with the provision of material to the DPP. Relevantly, it is in the following terms:

“14   Other functions of Commission

(1)   Other functions of the Commission are as follows:

(a)   to gather and assemble, during or after the discontinuance or completion of its investigations, evidence that may be admissible in the prosecution of a person for a criminal offence against a law of the State in connection with corrupt conduct and to furnish such evidence to the Director of Public Prosecutions,”

18. Section 18 deals with circumstances where court proceedings have been instituted. The section provides as follows:

“18   Court proceedings

(1)   The Commission may do any or all of the following:

(a)   commence, continue, discontinue or complete any investigation,

(b)   furnish reports in connection with any investigation,

(c)   do all such acts and things as are necessary or expedient for those purposes,

despite any proceedings that may be in or before any court, tribunal, coroner, Magistrate or other person.

(2)   If the proceedings are proceedings for an indictable offence and are conducted by or on behalf of the Crown, the Commission must, to the extent to which the Commission thinks it necessary to do so to ensure that the accused’s right to a fair trial is not prejudiced:

(a)   ensure that, as far as practicable, the investigation is conducted in private during the currency of the proceedings, and

(b) give directions under section 112, having effect during the currency of the proceedings, and

(c)   defer making a report to Parliament in relation to the investigation during the currency of the proceedings.

(2A)   Subsection (2) does not apply:

(a)   (in the case of committal proceedings) before the commencement of the committal hearing, that is, the commencement of the taking of the evidence for the prosecution in the committal proceedings, and

(b)   (in any other case) after the proceedings cease to be proceedings for the trial of a person before a jury.

(3)   This section has effect whether or not the proceedings commenced before or after the relevant investigation commenced and has effect whether or not the Commission or an officer of the Commission is a party to the proceedings.”

19. Both the applicants and the respondent sought to rely on s 18 in the present case.

20. Part 4 of Div 2 of the Act deals with investigations. Section 21 entitles the Commission to require a public authority or public official to provide a statement of information, while s 22 empowers the Commission to require any person, including a public official, to produce documents or other things specified in a notice served under that section. Sections 24 and 26 respectively deal with claims for legal professional privilege and privilege against self-incrimination in respect of a statement of information or document required to be produced pursuant to s 21 or s 22. Section 24 effectively preserves the person’s right to claim legal professional privilege, whilst s 26 is in the following terms:

“26   Self-incrimination

(1)   This section applies where, under section 21 or 22, the Commission requires any person:

(a)   to produce any statement of information, or

(b)   to produce any document or other thing.

(2)   If the statement, document or other thing tends to incriminate the person and the person objects to production at the time, neither the fact of the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person (except proceedings for an offence against this Act or except as provided by section 114A (5)).

(3)   They may however be used for the purposes of the investigation concerned, despite any such objection.”

21. Sections 30 and 31 deal with compulsory examinations and public inquiries. They provide as follows:

“30   Compulsory examinations

(1)   For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a compulsory examination.

(2)   A compulsory examination is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.

(3)   A person required to attend a compulsory examination is entitled to be informed, before or at the commencement of the compulsory examination, of the nature of the allegation or complaint being investigated.

(4)   A failure to comply with subsection (3) does not invalidate or otherwise affect the compulsory examination.

(5)   A compulsory examination is to be conducted in private.

Note. Section 17 (2) requires the Commission to conduct compulsory examinations with as little emphasis on an adversarial approach as possible.

(6)   The Commission may (but is not required to) advise a person required to attend a compulsory examination of any findings it has made or opinions it has formed as a result of the compulsory examination.

31   Public inquiries

(1)   For the purposes of an investigation, the Commission may, if it is satisfied that it is in the public interest to do so, conduct a public inquiry.

(2)   Without limiting the factors that it may take into account in determining whether or not it is in the public interest to conduct a public inquiry, the Commission is to consider the following:

(a)   the benefit of exposing to the public, and making it aware, of corrupt conduct,

(b)   the seriousness of the allegation or complaint being investigated,

(c)   any risk of undue prejudice to a person’s reputation (including prejudice that might arise from not holding an inquiry),

(d)   whether the public interest in exposing the matter is outweighed by the public interest in preserving the privacy of the persons concerned.

(3)   An Assistant Commissioner may determine to conduct a public inquiry only with the concurrence of the Commissioner. However, concurrence is not required if the Commissioner would or might have a conflict of interest in relation to the inquiry.

Note. Powers of the Commission under this Division may be delegated to an Assistant Commissioner under section 107 (5) (e).

(4)   A public inquiry is to be conducted by the Commissioner or by an Assistant Commissioner, as determined by the Commissioner.

(5)   At a public inquiry, the person presiding must announce the general scope and purpose of the inquiry.

(6)   A person required to attend a public inquiry is entitled to be informed of the general scope and purpose of the public inquiry and the nature of the allegation or complaint being investigated before or at the time the person is required to appear at the inquiry.

(7)   A failure to comply with subsection (6) does not invalidate or otherwise affect the public inquiry.

(8)   A public inquiry is to be held in public.

(9)   Despite subsection (8), the Commission may decide to hold part of the inquiry in private if it considers this to be in the public interest.

(10)   Without limiting subsection (9), the Commission may decide to hear closing submissions in private. This extends to a closing submission by a person appearing before the Commission or an Australian legal practitioner representing such a person, as well as to a closing submission by an Australian legal practitioner assisting the Commission as counsel.

Note. Section 17 (2) requires the Commission to conduct public inquiries with as little emphasis on an adversarial approach as possible.”

22. It will be seen that the power to conduct such examinations is conditional upon the Commission being satisfied that it is in the public interest to do so. In respect of a public inquiry, it is also to be noted that the specific factors to be taken into account do not include the protection of a person against self-incrimination or preservation of the accusatorial system of criminal justice. However, the factors are non-exhaustive.

23. Section 35 gives the Commission power to summon witnesses and take evidence. Section 37, so far as relevant, provides as follows:

“37   Privilege as regards answers, documents etc

(1)   A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not entitled to refuse:

(a)   to be sworn or to make an affirmation, or

(b)   to answer any question relevant to an investigation put to the witness by the Commissioner or other person presiding at a compulsory examination or public inquiry, or

(c)   to produce any document or other thing in the witness’s custody or control which the witness is required by the summons or by the person presiding to produce.

(2)   A witness summoned to attend or appearing before the Commission at a compulsory examination or public inquiry is not excused from answering any question or producing any document or other thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

(3)   An answer made, or document or other thing produced, by a witness at a compulsory examination or public inquiry before the Commission or in accordance with a direction given by the Commissioner under section 35(4A) is not (except as otherwise provided in this section or section 114A(5)) admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.

(4)   Nothing in this section makes inadmissible:

(a)   any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or

(b)   any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or

(c)   any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.”

24. As the relevant reference the subject of the inquiry was a reference by both Houses of Parliament, the Commission was obliged to prepare a report on the matter. Sections 74A and 74B deal with the contents of such a report:

“74A   Content of reports to Parliament

(1)   The Commission is authorised to include in a report under section 74:

(a)   statements as to any of its findings, opinions and recommendations, and

(b)   statements as to the Commission’s reasons for any of its findings, opinions and recommendations.

(2)   The report must include, in respect of each ‘affected’ person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following:

(a)   obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence,

(b)   the taking of action against the person for a specified disciplinary offence,

(c)   the taking of action against the person as a public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official.

(3)   An ‘affected’ person is a person described as such in the reference made by both Houses of Parliament or against whom, in the Commission’s opinion, substantial allegations have been made in the course of or in connection with the investigation concerned.

(4)   Subsection (2) does not limit the kinds of statement that a report can contain concerning any such ‘affected’ person and does not prevent a report from containing a statement described in that subsection in respect of any other person.

74B   Report not to include findings etc of guilt or recommending prosecution

(1)   The Commission is not authorised to include in a report under section 74 a statement as to:

(a)   a finding or opinion that a specified person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence), or

(b)   a recommendation that a specified person be, or an opinion that a specified person should be, prosecuted for a criminal offence or disciplinary offence (whether or not a specified criminal offence or disciplinary offence).

(2)   A finding or opinion that a person has engaged, is engaging or is about to engage:

(a)   in corrupt conduct (whether or not specified corrupt conduct), or

(b)   in specified conduct (being conduct that constitutes or involves or could constitute or involve corrupt conduct),

is not a finding or opinion that the person is guilty of or has committed, is committing or is about to commit a criminal offence or disciplinary offence.

(3) In this section and section 74A, criminal offence and disciplinary offence have the same meanings as in section 9.”

25. Section 87 makes it an indictable offence to knowingly give evidence that is false or misleading in a material particular at a compulsory examination or public inquiry.

26. Sections 112 and 113 deal with restrictions on publication of evidence. So far as relevant, they are in the following terms:

“112   Restriction on publication of evidence

(1)   The Commission may direct that:

(a)   any evidence given before it, or

(b)   the contents of any document, or a description of any thing, produced to the Commission or seized under a search warrant issued under this Act, or

(c)   any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d)   the fact that any person has given or may be about to give evidence at a compulsory examination or public inquiry, or

(e)   any written submissions received by the Commission (including, but not limited to, submissions made by Counsel assisting the Commission),

shall not be published or shall not be published except in such manner, and to such persons, as the Commission specifies.

(1A)   The Commission is not to give a direction under this section unless satisfied that the direction is necessary or desirable in the public interest.

(2)   A person shall not make a publication in contravention of a direction given under this section.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

113   Evidence in criminal proceedings

(1)   If:

(a)   a person has been charged with an offence before a court of the State, and

(b) the court considers that it is desirable in the interests of justice that particular evidence given before the Commission, being evidence in relation to which the Commission has given a direction under section 112, be made available to the person or to an Australian legal practitioner representing the person or to the prosecutor,

the court may give to the Commission a certificate to that effect.”

27. It can be seen that the power to make a direction under s 112(1) is conditional upon the Commission being satisfied that the direction is necessary or desirable in the public interest. In that regard it may be contrasted with s 25A(9) of the Australian Crime Commission Act 2002 (Cth), considered in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 (X7), which provided that an examiner must give a direction that evidence not be published or published in a limited way if the failure to do so might prejudice the fair trial of a person who had been charged with an offence and s 13(9) of the New South Wales Crime Commission Act 1985 (NSW), considered in Lee, which contained a similar provision.

The DPP Act

28. Section 14 of the DPP Act gives the DPP power to recommend, to any person who conducts investigations in relation to offences or institutes or conducts prosecutions for offences, that proceedings be instituted in respect of any offence. Section 15A provides for disclosures by law enforcement officers of the DPP. Relevantly, it is in the following terms:

“15A   Disclosures by law enforcement officers

(1)   Law enforcement officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.

(1A)   The duty of disclosure arises if the Director exercises any function under this Act with respect to the prosecution of the offence.

(2)   The duty of disclosure continues until one of the following happens:

(a)   the Director decides that the accused person will not be prosecuted for the alleged offence,

(b)   the prosecution is terminated,

(c)   the accused person is convicted or acquitted.

(3)   Law enforcement officers investigating alleged indictable offences also have a duty to retain any such documents or other things for so long as the duty to disclose them continues under this section. This subsection does not affect any other legal obligation with respect to the possession of the documents or other things.

(4)   The regulations may make provision for or with respect to the duties of law enforcement officers under this section, including for or with respect to:

(a)   the recording of any such information, documents or other things, and

(b)   verification of compliance with any such duty.

(5)   The duty imposed by this section is in addition to any other duties of law enforcement officers in connection with the investigation and prosecution of offences.

(6)   The duty imposed by this section does not require law enforcement officers to provide to the Director any information, documents or other things that are the subject of a claim of privilege, public interest immunity or statutory immunity. The duty of a law enforcement officer in such a case is to inform the Director of:

(a)   the existence of any information, document or other thing of that kind, and

(b)   the nature of that information, document or other thing and the claim relating to it.

(7)   However, a law enforcement officer must provide to the Director any information, document or other thing the subject of a claim of privilege, public interest immunity or statutory immunity, if the Director requests it to be provided.

(8)   The duty imposed by this section does not require law enforcement officers to provide to the Director any information, document or other thing if to do so would contravene a statutory publication restriction. The duty of a law enforcement officer in such a case is to inform the Director of the following, but only to the extent not prohibited by the statutory publication restriction:

(a)   the existence of any information, document or other thing of that kind,

(b)   the nature of that information, document or other thing.”

29. Section 15A(9) of the DPP Act defines “law enforcement officer” to include members of the Commission, whilst it defines “statutory publication restriction” as including a prohibition or restriction on publication that is imposed by or under s 112 of the ICAC Act.

The primary judgment

30. The primary judge set out the facts to which I have referred above at [3]-[7]. Her Honour found that, in August 2013, when Mr English was briefed to provide legal advice to the NSW Crime Commission, he read parts of the transcript of ICAC’s public inquiry to which he obtained access from ICAC’s public website. Her Honour found that he was also briefed with hardcopy materials and a disc containing the transcript of the public inquiry, although he did not refer to them. Mr English, in his evidence, stated that he was briefed with this material by the DPP but was not aware that he had received it.

31. Her Honour found that, in June 2014, Mr English was briefed in connection with a potential prosecution of the applicants. She found that, whilst Mr English was away in England, he read the transcript of ICAC’s public inquiry which was still on his iPad. She noted that although Mr English did not specifically recall, he accepted that he may have read the applicants’ compelled evidence in this period.

32. Shortly after his return to Australia in July or August 2014, Mr English met with his then leader, Mr Fagan SC (as his Honour then was), who told him he should make sure he did not access the applicants’ compelled evidence or raise any aspect of it with Mr Fagan, witnesses or any member of the prosecution team. Her Honour accepted the evidence of Mr English that he was very careful not to refer to the compelled evidence or allow it to influence him in the preparation of the prosecution, although he acknowledged he could not rule out subconscious effect.

33. Her Honour found that Mr Walkowiak provided written advice to Mr Babb, the DPP, on 7 October 2014, including possible charges against Mr Macdonald for misconduct in public office as well as charges under the ICAC Act. The advice contained substantial extracts from Mr Macdonald’s statements at the public inquiry and references to his compulsory examination, any disparity between which was relevant to possible charges under s 87 of the ICAC Act. Her Honour noted that Mr Walkowiak accepted that the extracts were relevant to the charge of misconduct in public office. Her Honour noted that Mr Walkowiak had retained a copy of the advice and the material he read for the purpose of preparing it, although he had not reread it or consulted the material since providing the advice.

34. Her Honour accepted Mr Walkowiak’s evidence that the advice of 7 October 2014 did not refer to Mr Maitland’s evidence at the public inquiry.

35. Her Honour accepted Mr Babb’s evidence that he did not take into account the compelled evidence of Mr Macdonald in relation to the charges of misconduct in public office since it was inadmissible but that he did take it into account in deciding whether there was sufficient evidence to bring charges under s 87 of the ICAC Act.

36. Her Honour noted that for the purpose of preparing the prosecution case, Mr English conferred with 21 witnesses. She accepted that Mr English did not raise any aspect or part of the applicant’s compelled evidence before ICAC in any witness conference or access any such evidence for the purpose of drafting or settling any witness statement.

37. Her Honour noted that, between June 2015 and April 2016, Mr Walkowiak was involved in drafting witness proofs and statements. She accepted that Mr Walkowiak did not refer to, or consciously use, the applicants’ compelled evidence for any of those conferences or for the preparation of proofs of evidence. She noted, however, that during an interview with a Mr Archibald Tudehope, Mr Tudehope said that he had read in the paper that Mr Maitland had given compelled evidence to ICAC to the effect that he had not spoken to anybody about giving evidence in a private compulsory examination. Mr Walkowiak then played a recording of a telephone conversation between Mr Tudehope and Mr Maitland.

38. Her Honour accepted the evidence of Mr English that he only had a vague recollection of Mr Maitland’s evidence before the ICAC public inquiry and that he recalled only an allegation of various misstatements being put to Mr Maitland. She accepted his evidence that his only recollection of Mr Macdonald’s evidence was in respect of the following matters:

“(1)   Mr Macdonald’s evidence that he said, at the dinner at the Strangers’ Dining Room at Parliament House on 17 June 2008, that he required about eight conditions before he would agree to granting an exploration licence to DCM, of which Mr English remembered only two: that there be both industry and community support.

(2)   Mr Macdonald did not agree that he received either or both of the briefing notes from the Department of Primary Industry (DPI) dated 22 February 2007 and 13 May 2008 respectively because they do not bear his signature.”

39. Her Honour also accepted Mr Walkowiak’s evidence that he only read the applicants’ compelled evidence for the purpose of providing advice to Mr Babb. She also accepted that his recollection of that evidence was confined to the following matters:

“13.   I currently have no specific recollection of the evidence given by Mr Maitland to the ICAC, apart from some questions and answers in relation to whether or not Mr Maitland had discussed with anyone his attendance at a private hearing.

14.   I currently have no specific recollection of the evidence given by Mr Macdonald to the ICAC, apart from the following:

(a)   Mr Macdonald gave evidence to the affect [sic] that the DPI had recommended to him that he directly grant the exploration licence to Doyles Creek Mining and that he would not have granted the exploration licence if they did not support it.

(b)   Mr Macdonald gave evidence in relation to other examples of direct allocations of exploration licences.

(c)   Mr Macdonald gave evidence about the dinner at the Stranger’s Dining Room at Parliament House on 17 June 2008 that he required a number of conditions before he would agree to granting the exploration licence to Doyles Creek Mining. The only specific conditions which I can recall are (1) industry support and (2) community support.

(d)   Mr Macdonald gave evidence to the affect [sic] that he had not received a formal briefing note in relation to at least one of the briefing notes prepared by the DPI in relation to the application by Doyles Creek Mining.

(e)   Mr Macdonald gave some evidence on the topic of the Budget Estimates Committee.”

40. Her Honour also accepted the evidence of Mr Babb that he could no longer recall the extracts of the compelled evidence contained in the advices of 24 June 2014 and 7 October 2014. In reaching that conclusion her Honour stated that these advices were not prepared with respect to the charges the subject of the proceedings: R v Macdonald; R v Maitland [2016] NSWSC 865 (Primary Judgment) at [82]. It is this comment which forms the basis of the second ground of appeal.

41. Her Honour noted that Mr Walkowiak was cross-examined on various aspects of the Crown case, it being suggested to him that the preparation of those portions of the case was influenced by his reading of the compelled material. Mr Walkowiak stated that that was not the case and his evidence in that regard was accepted by her Honour.

42. Her Honour stated that a permanent stay would only be granted if the continuation of the proceedings would involve unacceptable injustice or unfairness and there were no other means available to avoid that fact. Her Honour accepted that where there is a feature which constitutes unfairness, but which can be resolved, a temporary stay may be appropriate. Her Honour stated the question of whether a stay ought to be granted required analysis of the relevant statutory provision to determine its effect on common law principles. She stated that the reason for this was that privilege can be abrogated and the companion principle (namely, that the prosecution cannot compel an accused to assist in the discharge of its onus of proof) (the companion principle) affected as long as the legislative intention is sufficiently clear.

43. Her Honour held that the applicants had not established any breach of the companion principle in the sense explained in X7 as no evidence had been compelled from them since they were charged. She stated that the present case shared features of R v OC (2015) 90 NSWLR 134; [2015] NSWCCA 212 (OC) in that the applicants were subject to lawful compulsory examination which was analysed for the purpose of laying charges. She said, however, that the distinguishing feature in the present case was that the evidence was given in public and disseminated to the public at large. She accepted that the applicants had been deprived of the opportunity of holding in reserve, until the commencement of the trial, the way in which they proposed to defend the charge; certain forensic choices thus being foreclosed to them by reason of their compelled evidence. Her Honour said she was not persuaded that this prejudice was one that ought to be taken into account, describing it as a legitimate prejudice because it arose from the wording of the statute itself. She stated that the situation in which a person can be compulsorily examined then charged about the matters the subject of the examination was specifically authorised and provided for by the ICAC Act, which also contemplated that the evidence would be given in public.

44. Her Honour emphasised the relevance of the objects of the ICAC Act, stating that publication of its hearings and findings was central to its object of exposing and preventing corruption.

45. Her Honour contrasted s 26(2) of the ICAC Act, which, she stated, prohibited direct or derivative use of any statement or document produced under a notice given under ss 21 and 22 in respect of which a claim for privilege against self-incrimination is made, with s 37 of the ICAC Act, which, she stated, abrogated all relevant privileges and only rendered inadmissible answers to which objection is taken. She stated that, in those circumstances, an objection under s 37 of the ICAC Act is not a claim for privilege, public interest immunity or statutory immunity for the purpose of s 15A(6) of the DPP Act. Her Honour stated that this did not leave s 15A(6) with no work to do as it applied to law enforcement agencies generally and comprehended privileges which are not personal, such as a claim for public interest or statutory immunity. Further, she stated that s 15A(6) of the DPP Act did not impose a prohibition on compelled evidence being provided.

46. Her Honour pointed to the fact that it was necessary for the DPP to use the compelled evidence to determine whether a charge under s 87 of the ICAC Act should be laid. She said the accusatorial system of justice did not compel division of functions such as to require other officers of the DPP to consider whether charges should be laid, particularly when the material was in the public domain. She also concluded that s 14(1) of the ICAC Act was not intended to confine the provision of information under s 15A of the DPP Act so as to prohibit the Commission supplying inadmissible material to the DPP.

47. In those circumstances, her Honour accepted the Crown submission that, given the evident legislative intention that compelled evidence in the public inquiry be public, it would be artificial to exempt the DPP from accepting such material for whatever purpose.

48. Her Honour concluded that, in those circumstances, the Commission was obliged by s 15A of the DPP Act to disclose the compelled evidence to the DPP, since it might reasonably be expected to assist the case for the prosecution or the case of an accused person within the meaning of s 15A(1) of the DPP Act and the DPP was entitled to use the compelled evidence to prepare the prosecution case. Her Honour emphasised that that had not occurred in this case.

49. Her Honour concluded that the Commission’s obligation to pass information to the DPP, including compelled evidence, under s 15A necessarily implied that the DPP was entitled to use such information to prosecute the charges. She stated it was not necessary to consider whether the same conclusion would be reached if the evidence was not in the public domain.

50. In the concluding part of her judgment her Honour also made certain findings of fact. As these findings are the subject of Ground 3 of the grounds of appeal, it is convenient to set them out in full:

“[172]   However, lest a different view be taken as to this matter, I am obliged to make findings of fact based on the evidence before me. These are set out above in the narrative and the consideration of access and recollection. The evidence relied on by the applicants goes only as far as to suggest that it is possible that Mr English’s advice and Mr Walkowiak’s requisitions for further investigations or evidence might have been affected by the compelled evidence to which they had been privy. What emerged from the cross-examination of Mr English and Mr Walkowiak is that, in respect of each matter put to them by counsel as having been prompted by some aspect of the compelled evidence, there was another (in some cases, more probable) explanation for the inquiry or advice. Each has been conscious of the requirement imposed by Mr Fagan and reiterated by Mr Neil that they put out of their minds the compelled evidence in the conduct of the prosecution case (which they read only for the (proper) purpose of advising the DPP whether charges ought be laid). I am satisfied, that to the extent to which they are able to put out of their minds what they have read and still recall of the compelled evidence, they have done so.”

The grounds of appeal

51. Each applicant relied on the following grounds of appeal:

“1.   Her Honour erred in holding that compelled evidence given by the appellant before the Independent Commission Against Corruption may be used by the Director of Public Prosecutions in relation to the prosecution of the appellant.

2.   Her Honour erred in finding, at paragraph [82], that the advice prepared by Mr Walkowiak and provided to the DPP on 7 October 2014 was not prepared with respect to the current charges the subject of these proceedings.

3.   Her Honour erred in finding, at paragraph [172], that the evidence relied on by the applicants goes only as far as to suggest that it is possible that Mr English’s advice and Mr Walkowiak’s requisitions for further investigations or evidence might have been affected by the compelled evidence to which they had been privy.”

Ground 1

The submissions

Mr Macdonald

52. Mr Macdonald referred to Lee at [45]-[46], submitting that it is a fundamental principle of the accusatorial system of justice that the prosecution is required to prove its case unassisted by the accused and that the principle of legality requires any statutory alteration to that principle to be expressed in clear words or by necessary intendment.

53. Mr Macdonald submitted that s 14(1)(a) of the ICAC Act impliedly indicated that the Commission should not furnish to the DPP evidence that is not admissible in criminal proceedings. He further submitted that s 14(1)(a) was not limited to circumstances where a request is made by the DPP or other bodies referred to in s 14(1), submitting it was implausible that s 14(1) would not apply when material is submitted without any request being made.

54. Mr Macdonald submitted that the fact that s 37 only granted statutory use immunity did not mean that the accusatorial principle was displaced. He accepted that the use of public hearings by the Commission is an important aspect of its functions. He submitted, however, that it was a large jump to conclude from that fact that the legislature intended that all the evidence given in a public inquiry be given in public without any restriction.

55. Mr Macdonald submitted that the existence of s 112(1) in the ICAC Act demonstrated that it was erroneous to say there was an evident legislative intention that compelled evidence in a public inquiry always be public. He submitted that the public interest for the purpose of s 112(1A) extended to protecting the accusatorial nature of the criminal justice system, a restriction that could extend to restraining publication by indicating that the material published may not be accessed by the DPP. He submitted that, at the least, the Commission should have made a direction under s 112(1) to indicate that the material may not be accessed by the DPP.

56. Mr Macdonald also submitted that s 15A of the DPP Act should be construed, as far as possible, to avoid displacement of the accusatorial principle. He submitted that s 15A can be read harmoniously with the ICAC Act and the accusatorial principle. He submitted that s 15A does not apply to any information that is subject to a claim for privilege, public interest immunity or statutory immunity. He submitted that the expression “claim of privilege” could comprehend an objection under s 37(4) of the ICAC Act and that the restrictive interpretation preferred by the primary judge was not required by clear words or necessary intendment.

57. Mr Macdonald noted that the statutory privileges created under Pt 3.10 of the Evidence Act 1995 (NSW) operate as rules of admissibility in the same way, he submitted, as s 37(3) and s 37(4) operate to render the material inadmissible. Senior counsel for Mr Macdonald described the protection granted by s 37(3) and s 37(4) as a statutory privilege.

58. Mr Macdonald submitted that the case was entirely different from the legislation considered in OC, as evidence to which objection is taken under s 37(3) or s 37(4) is always inadmissible and there is no reason for the DPP to consider whether a privilege is properly claimed.

59. Mr Macdonald submitted that the fact that the companion principle may not be applicable as the evidence was given prior to the laying of the charges has no bearing on the issue in the present case, namely, whether the accusatorial principle, which would otherwise operate to prevent the DPP from possessing or using answers compelled prior to charge, had been abrogated by statute.

60. Mr Macdonald submitted that what the Crown described as the default position, namely, evidence from a public inquiry will be available to all persons including the DPP, is qualified by s 112. Accordingly, he submitted there is no disclosed legislative intention that any evidence compelled at a public hearing may be used by the DPP.

61. Senior counsel for Mr Macdonald submitted that it was not a question of whether a direction was sought or whether one was given but rather a question whether the accusatorial principle was abrogated by statute. He submitted that, in the present case, the Commission had the obligation to give a direction under s 112. He submitted that the existence of s 112(1A) clearly distinguished the case from OC where, he submitted, there was an unfettered obligation to supply the compelled evidence to the DPP.

62. Mr Macdonald accepted that the compelled evidence could be provided to the DPP for the purpose of determining whether to lay charges under s 87 of the ICAC Act. However, he submitted that that did not give the DPP carte blanche to use the evidence for any other purpose.

52. Mr Macdonald contended that the fact that s 18 of the ICAC Act had no application in the circumstances of the present case did not support an argument that the accusatorial principle was abrogated by clear words or necessary implication. Mr Macdonald submitted that the existence of s 18 showed legislative concern to protect the accusatorial system.

Mr Maitland

64. Mr Maitland submitted that preservation of the accusatorial principle was consistent with the structure of the ICAC Act. He submitted that the prohibition, contained in s 13(4) and s 74B(1) of the ICAC Act, against the Commission making findings of whether a person is guilty of an offence is important because it distinguishes the Commission’s function in investigating corruption and the independent prosecutorial function of the DPP in determining whether criminal proceedings should be commenced. He referred to the provision of s 13(5)(b)(i) and s 74A(2)(a) of the ICAC Act, which, he submitted, preserved to the DPP any decision as to whether or not criminal proceedings should be instituted.

65. Mr Maitland submitted that the following matters indicated that the discretion of the Commission to hold a public inquiry does not indicate an intention to abrogate the accusatorial principle: the Commission’s principal function under s 13(1) of the ICAC Act is directed to investigation and education in relation to corruption as distinct from prosecution; the evidence and purpose of empowering the Commission to hold public inquiries is to expose corruption, which must be considered in the context of the Act which preserves the traditional independent function of the DPP; s 14(1) of the ICAC Act requires the Commission to only furnish admissible evidence to the DPP; and if it was intended that compelled evidence should be provided, s 14(1) would specifically provide for it.

66. Mr Maitland submitted that s 15A of the DPP Act did not evince, with irresistible clearness, an intention to alter the accusatorial process of criminal justice. He pointed to the fact that s 15A of the DPP Act was introduced by the Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 (NSW), which showed no intention to abrogate the accusatorial principle or the companion principle. By contrast, he submitted, referring to the decision in Gillett v State of New South Wales [2009] NSWSC 421 at [52], that the legislative purpose was to ensure a fair trial by ensuring that police officers disseminate exculpatory material to the DPP. He submitted that s 15A(6) was introduced into the Act to ensure that police were not required to produce material the subject of a claim for privilege. He submitted that taking an objection under s 37(4) of the ICAC Act constituted a claim for privilege for the purpose of s 15A(6) of the DPP Act.

67. Mr Maitland submitted that a contrary construction of s 15A of the DPP Act would mean that the DPP could use compelled answers in deciding whether or not to prosecute, how to formulate charges and how to best prepare and conduct the prosecution case. He submitted that that would overturn the accusatorial process of criminal justice.

68. Mr Maitland submitted that alternative remedies to a permanent stay can extend to remedying any feature of the proceedings which might render them unjust and unfair or put at risk the prospect of a fair trial. In the present case, he submitted that the balance between the prosecution and the applicants has been fundamentally altered in that the compelled evidence covers the same events and circumstances the subject of the prosecution. He submitted that Mr English and Mr Walkowiak read the evidence before providing advice, which assisted the DPP to determine that there was sufficient evidence to commence the proceedings. He submitted that each of Mr English and Mr Walkowiak acknowledged the possibility that they had been and might be assisted by that knowledge in relation to past and future work on the prosecution. He submitted that the balance could be restored by the grant of the stay sought.

69. In that context, senior counsel for Mr Maitland explained that all that was required for a temporary stay was a risk that there would not be a fair trial. He pointed to what he described as the concessions by Mr Walkowiak and Mr English that there was a possibility that they had been and might be assisted by reading the transcript. He acknowledged that there was no challenge to her Honour’s concluding remark that she was satisfied that, to the extent that Mr English and Mr Walkowiak were able to put out of their minds what they had read and still recalled of the compelled evidence, they had done so, but said that that still left open the possibility that they could not exclude it.

70. Senior counsel for Mr Maitland submitted, referring to Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15 at 436-437, that inconvenience in carrying out an object authorised by the legislature is not a ground for excluding common law rights.

71. Senior counsel for Mr Maitland submitted that the mere fact that it is an option for the Commission to receive evidence by way of a public inquiry is insufficient to abrogate the accusatorial principle. He submitted that the power to conduct public hearings is derived from its principal functions, which are not about prosecution but rather about investigating and exposing corruption.

72. In dealing with the circumstances in which the compelled material came into the possession of the DPP, senior counsel for Mr Maitland pointed out that the compelled material was on the Commission’s website prior to any reference to the DPP, but was downloaded by Mr Walkowiak for the specific purpose of carrying out his activities. He said it should not have been used. He also pointed to s 14(1) of the ICAC Act, submitting that it provided that the DPP should only be referred to admissible evidence, which, he said, was a significant indication of an intention to maintain the accusatorial process.

The Crown

73. The Crown submitted that the ICAC Act: makes it clear that a person who is required to give evidence at a public inquiry may be a person whose corrupt conduct is the subject of an ICAC investigation; imposes no requirement to make a non-publication order; makes such evidence admissible in the prosecution of a person for an offence under the ICAC Act; and contemplates circumstances where it will be necessary to furnish such evidence to the DPP for the purpose of obtaining advice about the commencement of such a prosecution.

74. The Crown emphasised that her Honour found, as a matter of fact, that no use of the compelled material had occurred nor was there any evidence that the material would be used to prepare the case against the applicants.

75. The Crown referred to the decision of the High Court in R v Independent Broad-Based Anti-Corruption Commission (2016) 256 CLR 459; [2016] HCA 8 (IBAC), noting that that case held that the companion principle was not engaged in relation to persons who had not been charged with an offence. It submitted that the principle does not operate as an aspect of the principle of legality for the purposes of statutory construction in advance of criminal proceedings commenced by the laying of a charge. The Crown submitted that to apply the principle in anticipation of the commencement of criminal proceedings would be to fetter the pursuit and exposure of corrupt conduct by public officials, which is the object of the ICAC Act.

76. The Crown noted that no evidence was compelled from the applicants after they were charged and their compelled evidence was in the public domain prior to any charge. It submitted that if the companion principle was to be engaged as a matter of statutory construction, the scheme of the ICAC Act is such that Parliament must be taken to have intended that when hearings have been lawfully conducted in public, and the transcript lawfully made available, the accusatorial criminal process has been altered at least to the extent of permitting prosecutors to know, before a person is charged, the content of evidence given in public.

77. The Crown noted that the Commission’s public inquiries are to be held in public and that the default position is that evidence from a public inquiry may be published unless the Commission is satisfied that non-publication is necessary or desirable in the public interest. It submitted that this discloses an intention that the compelled evidence of all witnesses will be available without a special carve out for the DPP. At the hearing, it was submitted that s 112 of the ICAC Act did not contemplate orders to the effect that publication be limited to particular persons for particular purposes or that particular persons be directed that they can read the material only for a particular purpose.

78. As far as s 14 of the ICAC Act was concerned, the Crown pointed out that s 14 is not confined to the provision of evidence that is or will be admissible, but extends to evidence which may be admissible. It submitted that, for the purpose of s 87 of the ICAC Act, that evidence may include all evidence given at a compulsory examination or public inquiry. It submitted that ICAC was entitled to seek advice from the DPP on all available offences, including offences under s 87. It submitted that the Act thus contemplates circumstances where it will be necessary for ICAC to furnish compelled evidence to the DPP.

79. The Crown pointed to the fact that ICAC may impose restrictions on the publication of evidence given at a public inquiry only if satisfied that a direction to that effect is necessary or desirable in the public interest in contrast to the circumstances contemplated by s 45(2) of the Crime Commission Act 2012 (NSW) when it may do so where failure to give a direction might prejudice the fair trial of a person who “has been or may be charged” with an offence.

80. In relation to s 15A of the DPP Act, the Crown pointed to the fact that the duty of disclosure by law enforcement officers required by that section extends to material that might reasonably be expected to assist the case for the prosecution or the case for the accused person. So far as the exception in s 15A(6) was concerned, it submitted that an objection to giving evidence under s 37(4)(b) is not a claim for privilege. It submitted that the fact that statutory privileges contained in the Evidence Act operate in relation to the admissibility of evidence is unsurprising in its statutory context, but does not mean that any attempt to take advantage of a statutory provision rendering evidence inadmissible constitutes a claim for privilege under s 15A(6). It submitted that to adopt the applicants’ construction of s 15A(6) would create of its own force an exception to the scheme spelt out in the statutory language and render the means by which s 15A set out to achieve its objective inoperative in a meaningful respect.

81. The Crown submitted that the result of the applicants’ submission was that the DPP would be obliged to erect “Chinese walls” to ensure that those who had seen the applicants’ evidence were separated from those who had not and that the DPP could consider the applicants’ evidence for the purpose of deciding whether charges under s 87 would be brought but another officer would need to consider whether other charges should be brought.

82. The Crown also submitted that the present case was not one which justified a temporary stay. The Crown pointed out that the primary judge did not find that Mr English and Mr Walkowiak’s access to the applicants’ evidence influenced or assisted their preparation of the prosecution case in any way. The Crown pointed out that the applicants did not lead evidence suggesting that the reading of the transcript by Mr Walkowiak and Mr English altered their capacity to determine the course to take at trial according only to the strength of the prosecution case. It submitted that the possibility of subconscious assistance relied upon by the applicants was insufficient to warrant a stay. It submitted that it was not unreasonable in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense for her Honour to conclude that there was no use of the applicants’ evidence in preparing the prosecution case.

Consideration

83. In IBAC, two police officers were summonsed by the respondent to be examined concerning an alleged assault. After being summonsed the police officers were suspended from duty on the basis that they were reasonably believed to have been involved in the assault. However, they had not been charged. The plurality concluded that the companion principle had no application in such a case: at [41]-[51].

84. Neither party in the present case disputed that the companion principle did not apply, and that the applicants were lawfully compelled to give evidence, at the public examination. The applicants’ case was that, notwithstanding, the accusatorial principle prevented their evidence being made available to the DPP.

85. In A v Maughan (2016) 50 WAR 263; [2016] WASCA 128, Martin CJ considered that the effect of IBAC was that, in circumstances where both the examination and the provision of its contents to the prosecuting authority occurred prior to the examinee being charged, neither the accusatorial principle nor the companion principle were engaged. His Honour made the following remarks:

“[63]   In my view the answer to the first question posed by this aspect of the applicant’s case — namely, whether the applicant’s right to a fair trial has been altered in a fundamental respect by the prosecution having access to the transcript of the applicant’s compulsory examination — is provided by the decision of the plurality in R v IBAC. Although there is, with respect, much to be said for the view expressed tentatively by Gageler J to the effect that the decision in Lee (No 2) might be thought to support an affirmative answer to the question, in R v IBAC the plurality expressly confined the decision in Lee (No 2) to a circumstance in which investigative material acquired compulsorily was furnished to the prosecution in contravention of the statute authorising its acquisition. This Court is, of course, bound to follow and apply the reasons of the plurality.

[64]   The approach taken by the plurality in R v IBAC is only consistent with the decision in Lee (No 2) having such a restricted application. That is because the plurality did not consider that the use of powers of compulsory examination by a prospective prosecutor for the purposes of a prospective prosecution involved any alteration of the criminal trial process in a fundamental respect. In the view of the plurality, in the absence of the material compulsorily acquired being furnished to the prosecution in contravention of the statute authorising the investigation, the criminal trial process would only be altered in a fundamental respect if the process had already been engaged by the commencement of criminal proceedings prior to the compulsory examination.

[65] In the present case, no proceedings had been commenced against the applicant at the time the applicant was examined before the Commission. It follows that, in the view of the plurality in R v IBAC, neither the ‘fundamental principle’ nor the ‘companion principle’ was engaged at the time those examinations were conducted and the transcript of the evidence given by the applicant prepared and provided to officers of the Commission. Further, unlike Lee (No 2), in this case there is no suggestion that the provision of the transcript of the applicant’s examination to any person responsible for prosecuting the applicant has taken place in contravention of an order or direction made by the Commission, or in contravention of any express provision in the Act equivalent to s 13(9) of the NSWCC Act which applied in Lee (No 2). To the contrary, as will be seen, there are provisions in the Act which expressly authorise the provision of information gathered by the Commission in the course of its investigations to prosecuting agencies. For these reasons, in my view, this Court is bound to apply the reasons given by the plurality in R v IBAC to conclude that access by the prosecution to the transcript of the applicant’s examination before the Commission does not involve any alteration to any fundamental principle of the common law or the criminal trial process, nor does it abrogate any fundamental freedom, right or immunity.”

86. In reaching this conclusion, Martin CJ stated that, to the extent that OC stated that the provision of the transcript to the prosecuting authority involved a derogation from the accusatorial system of criminal justice (at [97]-[99]), that conclusion had been overtaken by the decision of the High Court in IBAC: at [68].

87. McLure P reached a similar conclusion. She accepted that cases such as X7; Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39, Lee and IBAC, were directed to the construction of the legislation in question in each case, but stated that in the circumstances of the case before her, the legality principle of statutory construction was not engaged: at [161]-[163]. Corboy J reached the same conclusion: at [169]-[170].

88. In the present case, the issue is whether, as a matter of statutory construction, the ICAC Act abrogates the accusatorial principle so as to permit evidence compulsorily obtained from the accused in a public examination, prior to him or her being charged, being made available to the prosecution prior to the charge being laid.

89. On the approach taken by the Court of Appeal of Western Australia, the issue falls to be determined without regard to the principle of legality, namely, that the legislation would not infringe or abrogate fundamental rights without clear words or necessary intendment: See for example IBAC at [40]; Lee at [31]; X7 at [86]-[87] and the cases there cited.

90. No submission was advanced on whether the Court in this appeal should adopt the approach in Maughan rather than applying the principle of legality in determining whether the ICAC Act abrogated the accusatorial principle. In the circumstances, I propose to approach the question of construction applying that principle.

91. One of the objects of the ICAC Act, contained in s 2A, is to expose corruption or, as Priestley JA put it in Greiner in the passage I have cited above, “to bring into the light of day facts concerning the conduct of public officials”. Such an object is promoted by the publication of evidence of corruption by such officials.

92. It is correct, as the applicants pointed out, that the principal functions of the Commission set out in s 13 of the ICAC Act are investigatory. However, that must be read in conjunction with the fact that s 13(5) empowers the Commission to find that persons had engaged in corrupt conduct and to seek the opinion of the DPP whether criminal proceedings ought to be commenced against such persons.

93. Section 18 of the ICAC Act makes it clear that an investigation can continue notwithstanding the institution of court proceedings. Section 18(2) obliges the Commission, if the proceedings are for an indictable offence, to take such steps necessary to ensure a fair trial is not prejudiced, including conducting the examination privately and making a direction under s 112 of the Act to achieve that purpose.

94. The section is in somewhat similar terms to the then s 25A(9) of the Australian Crime Commission Act, considered by the High Court in X7. A majority of the Court in that case held that its existence did not lead to the conclusion that the accusatorial principle was displaced by the legislation, explaining that the principle did not depend on whether the examination in question could be described as unfair: at [88]-[89]. Consistent with the approach taken in X7, I would not conclude that s 18, on its own, showed a clear legislative intention to abrogate the accusatorial principle.

95. Nonetheless, the relatively limited area in which s 18 operates is relevant in considering whether such a legislative intention exists. Similarly, the fact that the protection against self-incrimination contained in s 26 of the ICAC Act only provides protection in respect of material obtained as a result of the exercise of the Commission’s powers contained in ss 21 and 22, whilst not conclusive, is relevant in determining whether the legislation, taken as a whole, intended to abrogate the accusatorial principle and only provide the specific protections contained in, for example, s 18, s 26 and s 112 of the ICAC Act.

86. Section 31 empowers the Commission to hold a public inquiry. I pointed out earlier that preservation of the accusatorial system of criminal justice is not one of the factors the Commission is required to take into account to determine whether it is in the public interest to hold such an inquiry. That does not mean that it may not be a relevant factor to take into account in considering the public interest in a particular case, but it cannot be said to be a determinative factor at least in all cases.

87. No challenge was made to the holding of a public inquiry in the present case. Once one is ordered, it is difficult to see how the accusatorial principle can be maintained, the answers being in the public domain unless the Commission decided it was in the public interest to hold part of the inquiry in private (s 31(9) of the ICAC Act) or to make a direction under s 112 of that Act.

88. Section 37 of the ICAC Act provides, in effect, that if objection is taken, the answers given are inadmissible in any civil, criminal or disciplinary proceedings. By contrast to s 26, it does not prohibit use being made of such answers in the proceedings. Thus, on the face of it, the answers could be used to test answers given in subsequent proceedings. This again tends to suggest a legislative intention to abrogate the accusatorial principle.

89. Section 74A of the ICAC Act requires, in the circumstances of the present case, that the Commission provide a statement as to any of its findings, opinions and recommendations and the reason for any such findings, opinions or recommendations. There is nothing in s 74A or in s 74B which precludes the Commission, in the course of giving such reasons, from referring to the evidence given in a public inquiry which was relevant to its findings.

90. Section 112 is of particular relevance to the question. The Commission is empowered to direct that any evidence given before it shall not be published, but provides that such a direction is not to be given unless it is satisfied that it is in the public interest to do so.

91. The applicants each submitted that s 112 demonstrated a legislative intention to preserve the accusatorial principle. I do not agree. That submission assumes that the accusatorial principle is the only relevant public interest criteria to be taken into account. This is not necessarily the case. As I have indicated, one of the objects of the Act was to bring corruption into the light of day. It may be that the Commission could conclude that, in particular circumstances, it was in the public interest that that be achieved notwithstanding the accusatorial principle. The question is hypothetical as no application under s 112 was made. However, what it does demonstrate, in my opinion, is that the accusatorial principle is abrogated at least in circumstances where the Commission determines it is not in the public interest to make an order prohibiting the publication of the evidence in question.

92. Thus far, I have dealt with the matter without reference to s 14 of the ICAC Act and s 15A of the DPP Act.

93. Section 14(1) of the ICAC Act describes a function of the Commission as assembling evidence that may be admissible in the prosecution of a criminal offence and to furnish it to the DPP. The reference to admissible evidence is understandable as it is only on the basis of that evidence that the DPP will decide whether or not to press charges. Viewed in that light, it does not seem to me that the section contains a negative implication to the effect that material that is not admissible should not be supplied. The difficulty in drawing such an implication is highlighted by the fact that the function is to assemble and supply evidence that may be admissible as distinct from evidence that is in fact admissible. It would ultimately be a matter for the DPP, in determining whether to prosecute, to consider whether the evidence supplied to it would in fact be admissible.

94. Further, it must be remembered that the material in question in the present case may be admissible in a prosecution for an offence under s 87 of the ICAC Act. That further shows the difficulty of making such an implication in circumstances where the evidence may be admitted on one charge but not another.

95. I do not think that s 15A of the DPP Act assists in determining whether or not the ICAC Act, by necessary intendment, abrogates the accusatorial principle. The section applies generally to law enforcement officers as defined in s 15A(9). The duty imposed by s 15A extends to supplying material which might reasonably assist in a prosecution of the offence under investigation. The provision of such material would, generally speaking, be carried out with regard to the accusatorial system of criminal justice. If the statute pursuant to which the relevant material was obtained does not demonstrate an intention to abrogate that principle, then the duty of the law enforcement officer under s 15A will not extend to such material. If that legislation does expressly or by necessary intendment abrogate the principle, then, subject to the limitations in s 15A(6) and s 15A(8), there is an obligation on the law enforcement officer to provide the material.

96. I do not think that the protection against the admissibility of material conferred by s 37 of the ICAC Act in respect of evidence to which objection is taken constitutes a privilege within the meaning of that expression in s 15A(6) of the DPP Act. This is because s 37(2), in its terms, abrogates the principle against self-incrimination and any other ground of privilege. In those circumstances, I do not think that a restriction on admissibility as a result of an objection, which need not be taken on any particular ground and which only protects against such admissibility and not any other use, could be said to constitute a privilege.

97. In the result, the ICAC Act by necessary intendment abrogates the accusatorial principle, at least in the circumstance of public examinations occurring before the examinee is charged, and substitutes for it the statutory protections contained in s 18 and s 112 if a non-publication order is made. The fact that the protection in s 112 is based on the public interest demonstrates that the Commission, if asked to make an order under that section, would be required to balance the undoubted importance of the accusatorial principle with other factors, including the need to expose corruption. No order under s 112 was sought in the present case and it is not appropriate to speculate on the result if such an application had been made. However, in the absence of any such order, it is, in my opinion, open to the Commission to make the transcript of the public examination available to the DPP. The primary judge was correct in so holding.

98. The result may seem harsh but, in my opinion, a contrary conclusion would frustrate the primary objective of the legislation, namely, to expose and combat corruption. Further, it must be remembered that under s 31(6) of the ICAC Act, the person required to attend a public inquiry is entitled to be informed of the general scope and purpose of the inquiry and the nature of the allegation or complaint being investigated. Such a person would then be entitled to make an application under s 31(9) that his or her evidence be taken in private, or an application under s 112, if he or she was of the view that the evidence would operate adversely to him or her in subsequent criminal proceedings.

99. I should indicate that even if I had come to the contrary conclusion, I would not have granted the stay sought. It is convenient to deal with that question after I have dealt with Grounds 2 and 3.

Ground 2

The submissions

The applicants

110. Ground 2 refers to her Honour’s statement at [82] of her judgment that neither the 24 June 2014 nor 7 October 2014 advice was prepared with respect to the current charges. Mr Maitland, whose submissions on this ground were adopted by Mr Macdonald, submitted that the evidence of Mr Walkowiak was that, whilst the advice of 7 October 2014 included consideration of a possible charge against Mr Macdonald under s 87 of the ICAC Act, it also included advice in relation to the misconduct in public office charges.

111. Senior counsel for Mr Maitland referred to the evidence of Mr Walkowiak that he downloaded the transcript after he had been allocated the advice in respect of the applicants, that it was provided to him for the purpose of advice arising out of the ICAC investigation, that he read it closer to the stage when he was near to finalising his advice and that the advice, at least in part, related to the prosecution case against Mr Maitland. He submitted that the proposed stay application was derived from that evidence and her Honour made a substantial factual error in reaching the conclusion complained of.

112. The applicants accepted that, whilst at an earlier part of her reasons to the paragraph complained of, her Honour referred to the fact that Mr Walkowiak’s advice included advice for the current prosecution against Mr Macdonald, they submitted that there was no reference in her Honour’s reasons to the undisputed evidence that it also included advice in relation to the prosecution against Mr Maitland.

The Crown

113. The Crown pointed to the fact that her Honour found that the advice of 7 October included possible charges against Mr Macdonald for misconduct in public office and that Mr Walkowiak accepted that the extracts of Mr Macdonald’s public examination were not only relevant to the s 87 charge but also relevant to the charge of misconduct in public office. She accepted the evidence that the advice did not include extracts of or otherwise refer to Mr Maitland’s evidence at the public inquiry: Primary Judgment at [53].

114. The Crown pointed to the fact that her Honour accepted Mr Babb’s evidence that he did not take the compelled evidence into account in relation to the present charges but only in deciding whether there was sufficient evidence to bring a charge under s 87 of the ICAC Act and that only Mr English and Mr Walkowiak had read the compelled evidence, Mr Babb having read extracts for the purpose of considering the s 87 charge: Primary Judgment at [57] and [75]

115. Senior Counsel for the Crown submitted that, in those circumstances, par [82] of her Honour’s judgment was a summary paragraph which was cognisant of the relevant distinctions in the evidence between advice prepared for the two potential charges. The Crown submitted that when she said the advice was not prepared with respect to the current charges, she was referring to that part of the advice which contained the transcript references, namely, the part concerning charges under s 87. It was submitted that this was not an error and, if it was, not one in the House v The King sense.

Consideration

116. It is correct, as senior counsel for Mr Maitland pointed out, that Mr Walkowiak acknowledged that the advice of 7 October 2014 included, in part, advice relating to the current charges against Mr Maitland.

117. In her judgment, the primary judge found that, between June and October 2014, Mr Walkowiak read transcripts of the applicants’ evidence in the inquiry and considered it for the purpose of providing advice to the DPP. She found that the June advice did not relate to the charge against Mr Maitland, although she found it contained extracts of the transcript of Mr Maitland’s evidence at the public inquiry: Primary Judgment at [47]-[49]. These findings were not disputed.

118. In relation to the advice of 7 October 2014, her Honour found it included advice of possible charges against Mr Macdonald for misconduct in public office and included extracts from his statement in the public inquiry, which Mr Walkowiak accepted were relevant to that charge. She also accepted that the advice did not refer to Mr Maitland’s evidence in the public inquiry: Primary Judgment at [53]. That finding has not been disputed.

119. Her Honour also accepted that Mr Babb did not take the compelled evidence into account in determining whether to press charges for misconduct in public office: Primary Judgment at [57].

120. Her Honour’s statement in [82] was dealing with the evidence of Mr Babb. Her comment “the advice was not prepared with respect to the current proceedings” is unusual in light of her Honour’s previous finding. However, it is explicable on the basis that what she was referring to was that Mr Babb did not take the compelled evidence into account in considering the charges the subject of the present proceedings, as distinct from considering charges under s 87 of the ICAC Act. That enables the paragraph to be read consistently with her earlier findings. In these circumstances, par [82] of her Honour’s judgment did not reveal an error vitiating the exercise of her discretion.

121. It follows this ground is not made out.

Ground 3

The submissions

The applicants

122. Once again, the submissions made by Mr Maitland in relation to this ground were adopted by Mr Macdonald.

123. Mr Maitland submitted that the statement made in [172] of the judgment of the primary judge to the effect, “The evidence relied on by the applicants goes only as far as to suggest that it is possible that Mr English’s advice and Mr Walkowiak’s requisitions for further investigations or evidence might have been affected by the compelled evidence” was contrary to the evidence which had in fact been led.

124. Mr Maitland submitted that the evidence in relation to Mr English and Mr Walkowiak covered all previous work, including the preparation of the Crown case statement, and was not confined to the preparation of advice by Mr English and the issue of requisitions by Mr Walkowiak. He submitted that they each accepted the possibility that previous work on the prosecution had been assisted by knowledge acquired from reading the compelled evidence and that further work would also be so assisted.

125. Senior counsel for Mr Maitland referred to the evidence of Mr English that he could not exclude that something he had heard from the compelled evidence might return to his recollection and that he may be assisted in the further conduct of the prosecution by knowledge acquired from reading the compelled evidence. He also referred to the evidence of Mr Walkowiak that he could not exclude the possibility that his work would be assisted by knowledge acquired from reading the compelled transcript, nor that his work for the 7 October 2014 advice had also been so assisted.

The Crown

126. The Crown submitted that the primary judge was aware of the evidence referred to by Mr Maitland in his submissions, pointing to her Honour’s reference to the evidence of Mr English that he could not rule out subconscious effects.

127. The Crown submitted that it was open to her Honour, having been satisfied that the compelled evidence was not used to prepare the applicants’ case, to determine that the only real possibility of access to the compelled evidence having any effect on the preparation of the prosecution case made out on the evidence were the two she described, rather than the abstract and general possibilities put to Mr English and Mr Walkowiak in cross-examination.

128. The Crown submitted at the hearing that her Honour had made specific findings on access and recollection and that the statement in [172] of her judgment was an evaluative judgment or observation characterising the findings in respect of the influence of the compelled evidence on Mr English and Mr Walkowiak. In these circumstances, it was submitted there was no House v The King error.

Consideration

129. The primary judge made an express finding that she was not satisfied that Mr Walkowiak’s preparation of the Crown case was influenced, much less assisted, by the compelled evidence: Primary Judgment at [100]. This finding was not disputed.

130. In relation to Mr English, her Honour accepted he was very careful not to refer to the compelled evidence or to let it influence or assist him (although he accepted that he could not rule out subconscious effects): Primary Judgment at [51].

131. Consistent with these findings, her Honour concluded that she was satisfied that each of Mr English and Mr Walkowiak had put out of their mind the compelled evidence to the extent they were able to do so: Primary Judgment at [172]. This acknowledged the possibility that the evidence had the potential to subconsciously influence them.

132. It follows that the primary judge did not fall into error. This ground of appeal has not been made out.

A temporary stay

133. This does not strictly arise as I have concluded that the ICAC Act abrogated the accusatorial principle so as to permit the DPP to make use of the evidence from the public inquiry. However, if her Honour was incorrect in this regard, I would not have exercised the discretion to grant such a stay.

134. The only challenge to her Honour’s factual findings were in Grounds 2 and 3 of the grounds of appeal, each of which I have rejected. In these circumstances, the factual position may be summarised as follows.

135. First, Mr Babb did not use the compelled evidence to consider whether or not to press the charges the subject of these proceedings.

136. Second, the prosecution team now does not have access to the compelled evidence and there is no suggestion they will do so in the future.

137. Third, her Honour accepted the evidence of Mr Walkowiak that he was not influenced by the compelled evidence in respect of the specific matters put to him.

138. Fourth, it was not suggested in argument that the specific matters Mr English and Mr Walkowiak said they could recall (see [38]-[39] above) were of any significance in either the prosecution or the defence case.

139. Fifth, her Honour accepted that, to the extent they were able to do so, Mr Walkowiak and Mr English had put the compelled evidence out of their minds.

140. It is well established that the Court has inherent power to direct a temporary stay of proceedings to prevent injustice and that the Court has a responsibility to avoid unfairness to an accused by, if necessary, imposing a temporary stay to avoid such unfairness: Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at 47. However, as was stated in X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57, a stay will only be granted to the extent necessary to relieve against unfair consequences: at [91]-[92], [114]; see also Redacted Judgment [2015] NSWCCA 281 at [108]-[110].

141. Having regard to her Honour’s findings, and particularly to the five matters to which I have referred above, there does not seem to me to be any unfair consequences which would arise from permitting Mr Babb, Mr Walkowiak and Mr English to continue to participate in the prosecution. In these circumstances, I would not have ordered a stay.

Conclusion

142. In each case, leave to appeal should be granted but the appeals dismissed.

143. R A HULME J : I agree with Bathurst CJ.

144. BELLEW J: I agree with Bathurst CJ and the orders his Honour proposes.

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Amendments

15 September 2017 - [20] add "Part 4" before "Division 2"

[66] change "Directions" to "Disclosure"

[66] change "[2009] NSWSC 41" to "[2009] NSWSC 421"

Decision last updated: 15 September 2017