MP v The Queen; CB v The Queen

[2012] HCATrans 162

[2012] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S10 of 2012

B e t w e e n -

MP

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney   No S18 of 2012

B e t w e e n -

CB

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2012, AT 10.27 AM

Copyright in the High Court of Australia

__________________

MR G.R. JAMES, QC:   May it please the Court, in the matter of CB, I appear with my learned friend, MR J.F. BLEECHMORE, for the applicant.  (instructed by Warren McKeon Dickson Solicitors)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR G.M. THOMAS, for MP.  (instructed by Konstan Lawyers)

MR M.A. WIGNEY, SC:   May it please the Court, I appear for the respondent in both matters.  (instructed by Commonwealth Director of Public Prosecutions)

GUMMOW J:   Now, is an extension of time required in either of these matters?

MR JAMES:   I had not thought so, your Honour.  Would your Honour allow me a moment?  There was, and I think there is an affidavit been filed.

GUMMOW J:   Where do we see that?  Page 139?  That is in CB?

MR JAMES:   That is in CB; yes, your Honour.

GUMMOW J:   That is your matter.  Is that opposed?

MR WIGNEY:   No, your Honour.

GUMMOW J:   Yes, you have that extension.

MR JAMES:   Your Honour, the application is within a very narrow compass.  In particular, the application turned on the present view taken by the New South Wales Court of Criminal Appeal to the decision of this Court in Hammond.  The background is set out in some detail in both the judgment of that court and in the primary judgment of her Honour Judge Murrell.  Both courts adverted to the relevant passages from Hammond. In particular, in the application book at page 25 through to page 29 the trial judge set out the relevant extracts.

CRENNAN J:   Hammond concerned injunctive relief, did it not, rather than a stay, which is what you now ‑ ‑ ‑

MR JAMES:   It did.  What happened in Hammond was he had been questioned but it had not come to the subject of the charges.  He was the last witness, he was about to be questioned and an injunction was obtained successfully.  This concerns what happened where the questions have already turned to the subject matter of the charges and there still remains the criminal trial.  Now, Hammond was the opportunity of the applicant to get in first, as it were.  In this case, the inquiry had been conducted on the basis, as the trial judge found, that there had been a representation to the solicitor appearing that the questions would not touch on the subject of the criminal charges, and it was only after that occurred that the question arose as to what should be done about it. 

CRENNAN J:   What about the ‑ application book 73 at paragraph 38, the last sentence there ‑ ‑ ‑

MR JAMES:   Page 73?

CRENNAN J:   Yes, this is in the judgment of the Court of Appeal.

MR JAMES:   Yes.

CRENNAN J:   Are you challenging that in some way?

MR JAMES:   Well, we are challenging it in the sense that there was a positive finding that the exercise was to touch on the matters relating to his charges, and did.  Now, of course, it is a different thing if there was a parallel trial by inquisition, and the point is made by the Full Court, but Hammond is not concerned with that, Hammond is concerned with examining him on oath compulsorily in an interrogation as to matters the object of which may not have been to hold a trial but which touched on the issues in his criminal trial.  His knowledge of drugs, manufacture, importation of drugs plainly was relevant to the charges at the trial and that is what the Court of Criminal Appeal said was part of the material on which he was being examined.

CRENNAN J: Well, of course, the regime under section 25A with which we are concerned is post‑Hammond legislation, obviously.

MR JAMES:   Yes.  Your Honour, I should at this point point out to the Court that there has been an amendment to the legislation designed apparently to come into effect on 25 June, designed to ensure that the 25A regime prevails over section 12 which had posed a positive duty to convey the information to the prosecution, though section 12 did not stipulate when.  The plain fact is it remains – and your Honours will have a copy of the amending legislation with the supplementary list of authorities that was filed yesterday.  In our submission, your Honours, that is not particularly relevant to our basic point.

Our point is not merely that there was a statutory regime designed to give some elements of protection from what might have been the worst position the applicant could have been put in. It is that the holding of an extra curial inquisition into matters that touch on and concern the subject matter of the criminal trial whilst that trial is pending is an impermissible interference with the exercise of judicial power, with the protections an accused person has been entitled to both at common law and under the Constitution or a fair trial according to law and a trial by jury under section 80, and that the very fact of holding such an inquisition in which the accused is compulsorily brought forward to give evidence, required to give that evidence on oath, required to answer the questions subject to penalty, is of itself such an interference with the administration of justice that the only remedy where that has been undertaken is that the criminal trial no longer can be properly had.

Now, we have to go that far to support the permanent stay.  The permanent stay is the appropriate remedy, just as it was in the English case of Grant where the police had bugged the exercise yard and passageway and thereby heard the professionally privileged communications between the accused and the accused’s lawyers.  It is very much the same point.  It is not to the point to say that the accused cannot point to some individual point of prejudice in his own conduct of the trial or some advantage to the prosecution in the conduct of the trial, since if that were the case, such cases as Moti become very difficult to understand. 

If one can stay the proceedings on the basis that the accused is brought involuntarily to the trial and contrary to law then similarly we say it is appropriate to stay the proceedings where the accused has been subjected to that which the common law traditionally, and subsequently, in our submission, the Constitution, have regarded as impermissible.

CRENNAN J:   Well, of course, the legislation in question here and the regime under 25A is part of the law.

MR JAMES:   Of course, and we are not suggesting it is not.  It is still entirely appropriate, just as it was in Hammond, for the Royal Commission to proceed ‑ in this case, the Crime Commission inquiry to proceed – but what one, in our submission, cannot do without embarrassing the subsequent trial is to put the accused on his oath at the hearing involuntarily and to conduct a collateral and inquisitorial inquiry.

CRENNAN J:   If there is no identifiable prejudice pointed to, how do you get to the Jago test, page 34 of Jago, that:

there must be a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences” ‑ ‑ ‑

MR JAMES:   Firstly, there is a prejudice.  He is being doubly, in effect, tried on the allegations.  Secondly, the Jago test that your Honour has referred me to is not the only test.  That test looks to the internal conduct of the trial process, not to extraneous events.  There are extraneous events that can cause a trial to be stayed.  An example off the top of my head in terms of memory was when the Attorney‑General of Queensland gave a plenary indulgence to the Queensland car stealing squad in order to obtain cars for the purposes of arresting receivers.  In D’Arrigo this Court looked at that conduct.  It is rather similar, of course, to the high issues of public policy that arise in relation to evidence unlawfully obtained, where whether there is actual prejudice to the individual accused is not the question.  The question is the breach of the policy.

We are submitting here that it is the damage to the institution, the administration of justice, occasioned by a regime that requires an accused before their trial to be put to answer allegations on their oath, occasions that kind of abuse to the system of justice.  That was caught up in Hammond in almost every one of the judgments, particularly those of Justices Deane and Brennan.

CRENNAN J:   Now, what do you say about application book 102, paragraph 110?  There is a discussion of the decision of Justice Emmett and Justice Jacobson in ACC v OK.  Now, you have to deal with those decisions, do you not, in the context of your Hammond argument?

MR JAMES:   We do, yes.  Indeed, we submit that OK and the Full Court are to a very great extent on very much the same plane, that is, that they have narrowed Hammond dramatically.  Of course, here we say that it is not merely the matter of whether a charge has been laid.  The issue is whether what is being done is violence to the administration of justice and the criminal process.  For instance, to artificially delay a charge, to permit of such an interrogation on matters going to the substance of a criminal trial to be brought, pending, held back, may well attract exactly the same doctrine, and in fact, that point is, by one of the Justices at least in Hammond, already referred to.

Now, what we say concerning that is, of course, it is open to the Executive, or a Royal Commissioner appointed in the prerogative, to make inquiry into the subject matter of particular activities, a different thing entirely to call a person against whom criminal charges are brought or pending in order to examine that person on oath and compulsorily in relation to the subject matter of those allegations.

Now, it is not so easy as to say there were no charges, but if it were, in this case, there were charges, and it was very plain that there were.  Indeed, the AFP officer who was responsible in respect of those charges had delegated [Mr H] to a particular role in those charges, and a particular role with the Australian Crime Commission inquiry, and there was a ‑ ‑ ‑

CRENNAN J:   Was he not required under directions to shred all his notes and so on?

MR JAMES:   He was given a direction.  I do not think it went to the extent of requiring him to shred his notes, but he did shred his notes; he ran back and shredded his notes.  Now, we are not talking now about the 25A effect of the direction, we are saying that his conduct in fact caused him to recognise after the trial judge in OK had delivered his judgment what precarious situation relating to the trial of the accused the police were in.  Now, indeed, this was not a matter of simply conducting an inquiry into techniques of dealing in drugs or importing them, it was focused on this particular accused, and it was focused on this accused in the context of his pending trial.

In our submission, firstly, if it is for any court to write down or confine what was observed by all the Justices in Hammond it is for this Court.  Secondly, the principles in Hammond are designed to be observed to protect the institution of a trial by jury, and it has been remarked again and again, to protect the exercise of Commonwealth judicial power.  Thirdly, the basis of the disagreement with Hammond is, in our submission, unwarrantably to narrow the views that the individual Justices espoused in Hammond.

CRENNAN J:   You seem to be saying that it does not matter if safeguards are put in place, that none of the information is disseminated.

MR JAMES:   I do not quite go that far.  I do go so far as to say that simply safeguards that a person need not incriminate themselves, simply safeguards that evidence obtained by a person incriminating themselves in response to compulsory interrogation, simply safeguards about limits of publication and so forth, do not render such an interrogation as this, a collateral interrogation to the trial on the issues of the trial, something which does not interfere either with the exercise of Commonwealth criminal processes or the perception of it.  Indeed, what is the community to say?  Bloggs is going to trial and shortly before his trial he will be brought up and interrogated and the Commonwealth, an emanation of which is trying him, an emanation of which is interrogating him, will be responsible for those two exercises.  That point was also made in Hammond.

It is our submission that the stay, the principles on which the stay was granted by the judge was appropriate.  The restrictions posed by the Court of Criminal Appeal required an accused person to demonstrate the personal effects of prejudice in circumstances where the very body interrogating him and the very body prosecuting him are hardly amenable to producing the material to show such prejudice.  One has to accept that the directions were given, and one has to accept that the directions are likely to be complied with.  Unfortunately, we know in terms of history that the requirement that evidence obtained against a person in a Royal Commission shall not be tendered in evidence against him took a long while to be complied with.  In Mr Giannarelli’s case it was not complied with until it got to the High Court.

They are our submissions on why we submit this Court should consider Hammond and its application in this case.  We submit that it is an appropriate matter for special leave, particularly since bodies such as this, holding hearings such as this, are now proliferating by legislation throughout the States as well as the Crime Commissioner in the case of the Commonwealth.  It was not to be thought when the legislation was originally enacted that persons would be brought before the Commission for interrogation on matters that might touch on or concern their trial at the time at which the legislation was initially enacted.

In our submission, the present regime might contemplate it in the sense that it might contemplate that there could be questions which touch on or concern the trial, but that the way to deal with that is not to interrogate people before their trial, on the other hand, to ensure that the trial can proceed without the collateral interrogation.  May it please the Court, they are our submissions.

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, the year after Hammond, 1982, Sorby was decided, 1983.  It too raised a question about restraint on executive questioning.  Intervening had been the passage of legislation at section 6A of the Royal Commissions Act as it then stood, which is to be found at 152 CLR 295, and it had the effect of recognising the distinction which had been the tradition, a tradition sanctioned by the prospect of contempt of court being committed by an attempt compulsorily to question a person subject to charge about the topic of the charge.

Section 6A, enacted between 1982 and 1983, recognised that by tempering the abolition of privilege against self‑incrimination for such compulsory questioning, a very familiar thing with executive questioning such as in Royal Commission and Crime Commission, but ‑ ‑ ‑

CRENNAN J:   Was there a use immunity ‑ ‑ ‑

MR WALKER:   There was a use immunity, and a use immunity is a common thread here.  We have not yet got – and this is part of our plea for special leave – we have not yet got to the stage of the Commonwealth proposing legislation could not only abolish privilege against self‑incrimination, not only permit derivative use, but also start to entrench upon what has been traditionally the political compromise of use immunity; that is, what can you tender?

Now, 6A tempered the abolition of privilege against self‑incrimination, which was accompanied by use immunity, by preserving the privilege entitling a person to refuse to answer after they had been charged, and that was the traditional cut‑off point. It is a cut‑off point that has now been utterly abrogated under cover of the notion that directions, ad hoc directions, discretionary of their juristic nature, to be made under section 25A, will protect against identifiable unfairness, and that, in our submission, is what raises the special leave point, and in particular raises the question what is the standing of the statements of principle – and I stress of principle in Hammond – and what is the effect upon them of the commentary about that as recently thereafter as in Sorby.

The Court of Criminal Appeal appears to have regarded Sorby as in somehow qualifying the authority of Hammond; not so.  Chief Justice Gibbs portrays not by a single syllable in his reasons in Sorby within 12 months of Hammond that anything was being reconsidered, let alone retracted, from the reasons in Hammond.  Rather, there had been more thought to the question which was important as to whether the provisions in question did abrogate privilege, and it was held they did in Sorby, and then at 152 CLR at 299 there is a distinguishing of Hammond which has been incorrectly called in aid by the Court of Criminal Appeal in this case as if it somehow detracts from the authority of the questions of principle addressed and answered in Hammond.

Now, I stress “of principle” because, of course, the matter is framed differently.  It is a prior restraint on the Executive questioning by a person charged that was the occasion for the court to contemplate the effect on a trial in Hammond.  Here, there was no prior restraint.  It is not suggested that something in the nature of laches will affect any of the issues so important as arise here.

Then there was a question which could only be raised in the framework of the stay of proceedings which does give rise to the questions my friend, Mr James, has noted and, in particular, where does one see in the schema a case such as Moti where there is no identifiable defect or unfairness in a trial process which is proposed that informs the conclusion at all.  It is because there has been a fully accomplished anterior step at odds with the dictates of the administration of justice, there to be described in Moti in terms of abuse of process, which cannot be repaired.  We submit, although of course the facts and circumstances are strikingly different, there is at bottom the same principle to be invoked here.  There is a fully accomplished interrogation compulsorily abolition of privilege against self‑incrimination which has happened.

Nothing the trial judge can say to the jury will do anything but make it worse.  How can you give a direction to ignore something which after all cannot be the subject of tender as to its content?  Of course, how can a trial judge do anything to undo the fact of what has been accomplished, let alone to provide some compensatory dispensation or provision – you cannot put lead, as it were, in the saddlebag of the prosecution.

It is for those reasons, in our submission, that it is in vain to propose that this is the kind of case that ought to be attended to by asking but how is this going to hurt a fair trial process beyond the general proposition that was well and truly established in Hammond.  That question, in effect, is saying Hammond no longer matters, that what Hammond said about the prospect of the trial in that case ‑ ‑ ‑

CRENNAN J:   Not that Hammond no longer matters, just an issue about the scope having regard to legislative development since.

MR WALKER:   Now, there has been ‑ ‑ ‑

CRENNAN J: And the regime under section 25A. Directions can be made so no use can be made of what has been traversed in those confidential hearings in the trial.

MR WALKER:   Accepting that and accepting as we have in our written argument for special leave that we are the beneficiaries of the finding by the majority about how those provisions are paramount over the compulsion – the mandatory handing on of information – accepting all of that, the fact remains that that proceeds on the basis that the accomplished interrogation vanishes as a prejudice to a person in presentation of defence, notwithstanding they have already by the Executive and under legislative sanction been asked to say something about the matters in question. 

When I say “say something” that is in deference to the distinction that one sees in the Court of Criminal Appeal’s reasons in the passages already drawn to attention concerning being questioned about the subject matter of the charges as opposed to revealing a defence, a line which could lend itself to casuistical distinctions which ought to have no role to play in the application of this principle.  What Hammond said, and we have tried to pull together all the references in paragraph 12 at page 123, what Hammond said can be illustrated by Chief Justice Gibbs’ description at 198, point 7 of 152 CLR:

the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence –

Your Honours will note there is no reference to the revelation of defence –

is very likely to prejudice him in his defence.

It is that fact.  Now, his Honour expressed it thus, notwithstanding, on the facts of Hammond, investigating officers were admitted within the private circle attending the examination - his Honour does not refer to that as being a reason for supposing that prejudice, and notwithstanding that there were the provisions about use immunity which could, of course, be raised in saying well, you will not be prejudiced because this cannot be tendered against you.

Neither of those matters appears in any of the reasoning by their Honours and you will see, not only at 198 point 7, but if you go to 199, point 4, the Chief Justice there, as it were, puts to one side what the Commissioner’s report may do.  In other words, it does not matter whether the Commissioner will report in some way.  The prejudice would still be one that exists.

At 201, point 7, Justice Murphy quite plainly says that it is inconsistent with the section 80 right, that he would be subject to interrogation regardless of self‑incrimination and use immunity.  Page 203, point 7, Justice Brennan quite plainly approaches it on the same, what I will call, absolute basis, that is, a per se prejudice by being questioned after a

process has commenced in which it is of paramount importance – we say of constitutional entrenched importance – that the prosecution closes its case before the accused can be called upon to answer about the offence, whether that is to present a defence or anything else.  The other references we have given, I do not need to take your Honours to them in detail, include of course the passage in Justice Deane at page 207, to which Mr James referred and I quote in part:

It is not, in my view, necessary to go beyond these things –

that is, the sequence of events concerning compulsory questioning and the charging –

In themselves, they constitute injustice and prejudice to the plaintiff.

Those are not statements that can be read without appreciating that the principle which decided that case did not require examination of the particular facts about, for example, the reliability of undertakings to keep things confidential, or whether Chinese walls were impregnable, or whether electronic preservation and copying or transmission of documents was secure.  None of those things which presumably, following the Court of Criminal Appeal, will now need to be the subject of investigation case by case, none of those things played any part in the adumbration of principle by the High Court in Hammond.  They are not affected in Sorby and yet, in our submission, they have been firmly put to one side as if of little or no decisive character by the approach taken first of all in OK and then most importantly as to the stay question in this case.

In our submission, regardless of the outcome of the balance to be struck in relation to provisions and practices which represent such a reversal of longstanding tradition, it is of abiding importance that it is this Court that pronounces how one goes about the understanding of the operation of such statutory provisions against the background of that orthodox expectation the charge signals the time after which compulsory questioning of any kind, with or without safeguards, can no longer be had.  May it please the Court.

GUMMOW J:   We do not need to hear from you, Mr Wigney.

Having regard, in particular, to the terms of section 25A of the Australian Crime Commission Act 2002 (Cth) and to what was said in paragraphs 110 and 111 of the reasons of the Chief Judge at Common Law in the Court of Criminal Appeal, this is not an appropriate occasion to reconsider what was said in Hammond v The Commonwealth (1982) 152 CLR 188 and Sorby v The Commonwealth (1983) 152 CLR 281. Nor do the interests of justice otherwise require grants of special leave. Accordingly, each application is refused.

AT 10.58 AM THE MATTERS WERE CONCLUDED