McCarthy v The Queen; Seller v The Queen

[2015] HCATrans 175

[2015] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S96 of 2015

B e t w e e n -

PATICK DAVID McCARTHY

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S103 of 2015

B e t w e e n -

ROSS EDWARD SELLER

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

BELL J
GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 2015, AT 10.14 AM

Copyright in the High Court of Australia

____________________

MR P.K. BRUCKNER:   May it please the Court, I appear for Mr McCarthy, with my learned juniors, MR G.S. ANTIPAS and MR W.R. JOHNSON.  (instructed by Hardinlaw Solicitors)

MS R.L. SEIDEN, SC:   May it please the Court, I appear for Mr Seller, with my learned friend, MS T.J. DAVY.  (instructed by Gibsons Lawyers)

MR P.R. McGUIRE:   May it please the Court, I appear for the respondent Crown in both applications.  (instructed by Director of Public Prosecutions (Cth))

BELL J:   Yes, Ms Seiden.

MS SEIDEN:   Thank you, your Honours.  We have tried to allot the time so Mr Bruckner and I will try and fit within the 20 minutes.  It is anticipated that I will take the lion’s share of that.

BELL J:   Thank you, Ms Seiden.  Yes.

MS SEIDEN:   Your Honours, this case is concerned with ensuring the fair trial of an accused in circumstances where there is a possibility that there has been unlawful dissemination to the prosecutors of the accused’s defences and self‑incriminatory evidence, albeit the prosecutors are not aware of the source of that information.  One of the errors, with respect, of the Court of Criminal Appeal is in failing to recognise that the actual prejudice arises from the possibility of the unlawful communications, and the other error is in failing to recognise that the possibility of the unlawful communications puts at risk, in the words of this Court in Lee, the prospect of a fair trial.  The accused’s entitlement to a fair trial is jeopardised by the possibility.

BELL J:   Just to unpack that for a moment, does it follow that in a case where there has been disclosure contrary to the provisions of the Act, notwithstanding that the prosecutor and those instructing the prosecutor have not had any direct communication of the contents of that disclosure and are not aware of – I withdraw that; they have not had any direct communication to their knowledge of the contents of the disclosure – and where, as it would seem, it is accepted that the case is principally one to be run on documents, nonetheless the only solution, because one cannot exclude the theoretical possibility that the prosecutor may have learnt something in the course of some discussion with those on the prosecution’s side, if I may put it that way, that stems from the disclosure that the court must permanently stay proceedings on indictment?

MS SEIDEN:   Your Honour, with respect, I think it does not follow that that is necessarily the case.

BELL J:   Why is it the case here?

MS SEIDEN:   Two reasons.  In this case, it stems back to the charges.  The two sorts of relief that the accused is seeking is either a change of the prosecutorial team, for a team that has not had communications with persons who had direct evidence of the compulsory examination, or a permanent stay.  The permanent stay, with respect, relates to the possibility that the charges themselves have been ratified by prosecutors who have this unsourced knowledge; the other remedy which relates primarily to the prejudice which is caused to the accused by now being in a position to decide whether or not to give evidence and be cross‑examined at the hands of a prosecutor who has this unsourced knowledge.

There are two separate types of prejudice that the accused points to.  The first relates to his decision now to decide whether or not to give evidence and be prosecuted by a prosecutor who may have the evidence, his self‑incriminatory evidence, and his defences.  The other aspect of prejudice is that the charges were formulated by persons with direct knowledge of the compulsory acquired material, and then the charges were selected and ratified by a prosecutor.

But no prosecutor in this matter has been entirely quarantined from the compulsorily acquired material.  At the very least, there have been communications with all the prosecutors and instructing solicitors, and Mr Tang, so it is impossible to know that the charge selection and charge ratification has not in fact been influenced by the knowledge of the unsourced communications, therefore affecting the balance between the accused and the prosecution, and affecting the accusatorial process which starts pre‑charge.  In another case, your Honour, it may be that the prosecutors who ratified or selected the charges may not have had communications.  In this case, there is evidence, and it was accepted that at the very least, Mr Tang had communications with the prosecutors.

BELL J:   I thought that Mr Tang had had communications with Ms Shouldice and Mr Corkery, and that both those individuals had retired.

MS SEIDEN:   If I could take your Honour to application book 100, and it is there set out, just a description – obviously, we do not have the contents of the file notes, but you will see that in February 2009, there was a meeting with the Crime Commission attended by Quincy Tang, Elizabeth Simpkin, Martin Corkery, Ms Curry and Esther Phang.  Then again, in July 2007, there was another meeting with Mr Tang and Ms Curry; 23 July 2007, there was a meeting with Mr Hastings, my learned friend here Mr Crown, and Mr Tang.  There are further examples of that in the chronology which primarily made up the submissions in‑chief of Mr McCarthy, and that has been accepted.

We are in a situation where there does not seem to be a member of the current team that has not at least had a conversation with Mr Tang.  It is also to be recalled that Mr Tang, at the time he was having these meetings, admitted he did not understand that it was unlawful to disseminate the information.  It is not simply that there has been a meeting; possibly properly informed, one could have a meeting with somebody who had been present at the examination and the prosecutor.  It is certainly accepted that the prosecutor has seen no material that says, for instance, at the compulsory examination, Mr Seller said “X”, but no assurance has been given that they have not been told “X”, and that lies at the heart of the case.

The assurance that the prosecution has been able to give is a very limited assurance, an assurance that, if they have been told material from the compulsory examination, they do not know it.  They say that is not a problem, because unsourced knowledge does not create a jeopardy.  In fact, we say that demonstrates the prejudice.  With respect, it is not simply looking at it in the way that the Crown intends to put its case.  One must consider the very real prospect that the accused must now decide “will I be cross‑examined by my learned friend, who has had conversations with Mr Tang?”  Mr Tang was in the room when he gave his compulsory examination.

BELL J:   Against an acceptance that counsel retained by the Crown has no awareness that anything conveyed in any discussion with Mr Tang related to the contents of the interview given to the Commission.

MS SEIDEN:   With respect, your Honour, it is submitted that the assurance does not quite go that far.  If I could take your Honours to application book 172 – and the reason it is submitted it does not go that far is the construction of the word “knowledge” that the respondent puts in this matter.  If I could take you to application book 172, about line 7:

Unless the Prosecutors are in terms told this is what he has said under examination, then they don’t know the thing that they’re prohibited from knowing –

and a bit further down, at about line 26 –

you cannot reveal to another individual what an examinee said under compulsion, unless you state the words he admitted this under compulsion; or, I was at his examination and I can tell you he admits “X” or something of that nature.

One has to connect the information that is conveyed to the source of it, lying in a compelled admission.  If one doesn’t, couldn’t say that, one is not conveying what happened in the examination at all.”

It is in that context that the assurance has been given.  The prosecution has not assured the court or the accused that they do not know some of the materials, and in cross‑examination, Mr Tang admitted that he may well have discussed some of these documents with the prosecution.  What the prosecution is saying is if we discussed the contents of these documents, nobody put us on notice that that particular document came from the compulsory examination, or the witness said this, and so it is a very limited assurance, and it is based on what the Crown contends is knowledge.

Of course, it is accepted that by looking at the materials, they do not reveal on their face “by the way, Mr Seller said this”, but that is as far as the assurance goes, and it is submitted that does not negate the possibility that all of the content of the compulsory examinations is within the knowledge of my learned friend.  That assurance does not go so far, and being put in that position, the accused now has to decide whether or not to be cross‑examined by somebody that may well have that knowledge.  By the Court of Criminal Appeal setting the test at proof of actual knowledge, when knowledge is more than knowledge coupled to source in effect sets an impossible bar, and with respect, my learned ‑ ‑ ‑

BELL J:   Did the Court of Criminal Appeal do more than approach the matter upon the basis that one would not permanently stay proceedings on indictment on the basis of a speculative possibility?

MS SEIDEN:   When your Honour refers to “a speculative possibility”, I think, with respect, the Court of Criminal Appeal were referring to a real possibility and distinguished between proof of a possibility, which their Honours were all prepared to accept – they were prepared to assume the possibility of communication – and went one step further and required proof of the actual communications.  That is perhaps most clear in the Chief Justice at paragraph 218, which is at application book 113.  His Honour says in the first sentence:

I do not consider that the possibility of an unsourced disclosure in the present case is such as to warrant either a permanent stay –

and then in the very last sentence –

The position may well have been different if it was established that such an unauthorised disclosure, even if unsourced, was made.

Your Honour, it seems to have been accepted by the Court of Criminal Appeal that if the accused had been able to demonstrate actual disclosure of the communications, then that would have warranted a remedy, but his Honour was not satisfied that a possibility was enough.  With respect, that is, by requiring the actual and not accepting that a possibility was enough failed to recognise the prejudice in the possibility to the accused’s ability to decide whether or not to give evidence, and the possible infection to the charges.

In a sense, the Court of Criminal Appeal has left the accused in the only state of prejudice that could possibly remain.  If there had been unlawful knowledge because a document had actually said “Mr Seller said this”, then the prosecution team would have been changed.  Alternatively, if the possibility had been negated entirely that there was any unsourced communications, then again there is no prejudice.  It is the lack of consciousness that actually creates the prejudice, and it is submitted that that risk was not appreciated by the Court of Criminal Appeal.  The test did not, with respect, pay due regard to there being a fundamental breach of the accusatorial process, and its jeopardy to the process to require actual proof when the possibility occasions prejudice, with respect, sets the bar too high.

BELL J:   The bar, as you put it in that last submission, must be that in any case of wrongful disclosure, the only remedy lies in a permanent stay.

MS SEIDEN:   With respect, your Honour, we would not go so far for the reason that it depends whether the disclosure goes to the charges.  In this case, it did.  In another case, it may not, but certainly ‑ ‑ ‑

BELL J:   When you say “goes to the charges”, prosecutors who were, as it were, uncontaminated by dealings with Mr Tang or Ms Simpkin were responsible for the indictment.

MS SEIDEN:   With respect, your Honour, there is no prosecutor uncontaminated by Mr Tang or Ms Simpkin.  There is not one.  That is the problem in this case.  In another case, it will depend on quarantine.  The mere fact of unlawful disclosure does not get one there.

BELL J:   The matter I raised with you, Ms Seiden, is this.  It may be one thing to say that an original formulation of the charges was affected by input from Mr Tang, but by the time the matter has reached the stage that it now has, the indictment has been the subject of consideration by senior and junior counsel.

MS SEIDEN:   Who have had communications with Mr Tang and Ms Simpkin.

BELL J:   But who are unaware that those communications have involved the disclosure of any material from the Commission.

MS SEIDEN:   That is absolutely accepted, your Honour.  However, the Act itself does protect indirect communication – that is in section 25A(9) – and therefore, even if they are unaware of it, it is submitted that it is not authorised by the Act for them to have that information.

BELL J:   That is accepted, but at issue is the consequence.

MS SEIDEN:   Your Honour, I cannot cavil with that.  I see that I have taken up my time, and I would like to leave a few minutes for my learned friend.  Thank you.

BELL J:   Thank you, Ms Seiden.

MR BRUCKNER:   Your Honours, I will be brief.  At application book page 135, there is summarised the evidence which is uncontested as to the meetings between Mr Tang and Ms Simpkin, and former and current prosecutors, including the prosecutors who settled the charges the subject of this case.  They include meetings the purpose and object of which was to discuss the charges, including the selection of the charges and including the particulars that most interested the Crown and what ought to be focused upon.  In answer to your Honour Justice Bell’s question, the lack of awareness is the problem.  Honest prosecutors, as they all are, if they are aware of the problem, they could fix it.  By not being aware of what they do know, they are not armed with the essential integer they need in order to fix the problem.

The disclosures we have in this case fall short in two important ways.  The problem arises in this way.  No doubt the prosecutors cannot recall exactly what Mr Tang or Ms Simpkin said at these meetings.  Mr Tang himself could not recall, but he accepted the possibility that he did disclose some of this material.  Secondly, no lawyer would know, as the trial judge accepted, what was in Mr Tang’s mind and what his communications were based on.  They are simply not armed with any integer.  Lastly, they cannot inquire into their own mind what has caused them to pick a particular charge, or to focus on a particular issue, and therein lies the problem.

That is why the disclosures in this case were qualified.  They gave no assurance that Mr Tang did not make a meaningful contribution.  The Crown gave no assurance that they were not materially assisted.  What they instead gave was a qualified assurance that whatever the contribution, they said it did not matter because the charges were later ratified.  The problem with that is that the selection of the charges is still an advantage, and the focus on certain particulars is still an advantage.  Simply looking at a charge to see whether there is sufficient evidence to choose a charge so propounded does not remove the advantage that the Crown may have obtained out of the accused’s own mouth.

The other qualification was they said it does not cause prejudice because they say they cannot be advantaged when they do not know that they have been advantaged, but again, therein lies the problem.  Now, the first submission – sorry, your Honour.

BELL J:   Mr Bruckner, can I just inquire, at application book 93, 132, the Chief Justice recorded – I think it was your submission – that:

the evidentiary onus and legal responsibility of the prosecutor for which [you contend] is not engaged when the risk is merely speculative but only where [it is] a real risk of some infection.

MR BRUCKNER:   That goes to the very first question that fell from your Honour, and that is a distinction between this case and other cases.  There was a case in R v Medich, where an inquiry was made as to police officers who had attended an examination, and the inquiry before the court after the disclosures were made that these communications had taken place was whether the police officers had used that information in their communications with prosecutors and otherwise.  The factual inquiry occurred, and it was proven that that material was quarantined, and the police officers had not gained advantage.  We have not got that here.  We have the communications, and we have no assurance here.  Evidence‑wise, because we do not have that assurance, that should be enough for your Honours to give us the remedy.

If we go further, and if we need to look at whether the content of these oral communications included the giving of this information, then the question of privilege arises.  The case of Bailey indicated that where a

prosecution disclosure, because of the making and propounding of the prosecution, would require investigation of those communications that privilege is lost.  In that case, the New South Wales Court of Appeal did not say where that arises because there was no privilege in the first place, or whether it was lost.  My submission is it was lost.

In this case, we go further, because the prosecution disclosure may be confined to the documents about what necessarily arises, but here we have oral communications where the Crown may not know the content of them.  The accusatorial process, which according to Lee at ‑ ‑ ‑

BELL J:   Is this still on your waiver point, in relation to the privilege?

MR BRUCKNER:   Yes, this is the second ‑ ‑ ‑

BELL J:   How does the possibility of oral communication affect your waiver?

MR BRUCKNER:   This is an important point of principle, your Honour.  Justice Fullerton focused on what the prosecution must disclose out of the documents, or what must necessarily arise.  But the inquiry that Lee at 44 requires is when the Crown, as here, cannot assure the court that they did not gain advantage, they need to arm the trial judge with the ability to make directions to ensure the accusatorial processes are being complied with.  That requires inquiry in some cases as to oral communication that people may not be able to recall, and therefore in this instance, the waiver privilege is not coincident with the disclosure.  The waiver of privilege, or the loss of privilege, goes to the essence of the trial judge ensuring the accusatorial process; it goes further, and that is a point of principle.  That is all I wish to say, your Honours.

BELL J:   Thank you.  We do not need to trouble you, thank you, Mr McGuire.

There are insufficient prospects, should special leave be granted, that the appeals would succeed.  Special leave is refused.

AT 10.37 AM THE MATTERS WERE CONCLUDED