R v Bartlett [No 5] - [2013] WASC 132

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: R -v- BARTLETT [No 5] [2013] WASC 132

CORAM: EM HEENAN J

HEARD: 21 & 22 MARCH 2013

DELIVERED : 16 APRIL 2013

FILE NO/S: INS 107 of 2012

BETWEEN: THE QUEEN
First Applicant
AUSTRALIAN CRIME COMMISSION
Second Applicant
AND
PETER MERVYN BARTLETT
First Accused
RONALD GEORGE SAYERS
Second Accused
DEBORAH JEANNE GRACE
Third Accused

Catchwords:

Criminal law - Evidence - Procedure - Applications to set aside witness summons - Witness summonses to the ACC and CDPP for the production of documents - Documents sought in order to support application for a permanent stay of the prosecution - Requirements for permanent stay - Earlier stay discharged - Whether any basis shown to cause risk of prejudice to the fair trial of the accused - No Legitimate Forensic Purpose - Public Interest Immunity - Legal Professional Privilege

Legislation:

Crimes Act 1914 (Cth)
Criminal Procedure Act 2004 (WA)

Result:

Temporary partial stay of prosecution granted 20 December 2012 discharged
Witness summons set aside

Category: B

Representation:

Counsel:

First Applicant             :     Mr P Roberts SC & Mr A L Troy
Second Applicant         :     Mr M J Ritter SC
First Accused               :     Mr M C Boyce
Second Accused           :     Mr M C Boyce
Third Accused              :     Mr I D Hill QC & Ms M K Kaddesche

Solicitors:

First Applicant             :     Director of Public Prosecutions (Cth)
Second Applicant         :     Australian Crime Commission
First Accused               :     Clifford Chance
Second Accused           :     Clifford Chance
Third Accused              :     Jackson McDonald

Case(s) referred to in judgment(s):

A v Boulton [2004] FCA 56; (2004) 204 ALR 598
A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420
Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Australian Broadcasting Commission v Parish (1980) 29 ALR 228
Australian Crime Commission v Bartlett [No 3] [2013] WASC 108
Bartlett v The Queen [2012] WASC 503
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54
Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25
Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1
Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 608
Connell v The Queen (No 6) (1994) 12 WAR 133
Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117
R v Glennon [1992] 173 CLR 592
R v Seller; R v McCarthy [2012] NSWSC 934
R v Seller; R v McCarthy [2013] NSWCCA 42
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38
Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311
State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514
State of Western Australia v Kenner & Stanes (Unreported, WASC, 9 July 2009)
State of Western Australia v Rayney [No 2] [2012] WASC 38

EM HEENAN J: Following the decision of the New South Wales Court of Criminal Appeal in R v Seller; R v McCarthy [2013] NSWCCA 42 on 1 March 2013 the time has come to deal further with several outstanding applications in this case.
The first task is to determine whether or not the partial stay of this prosecution which I ordered on 20 December last, Bartlett v The Queen [2012] WASC 503, should be discharged or varied in light of the NSW Court of Criminal Appeal decision.
The second task is to consider the various applications made by the accused to require production under witness summonses of documents and other materials in the possession and control of the Commonwealth Director of Public Prosecutions (CDPP) and the Australian Crime Commission (ACC). There are also corresponding applications by the CDPP and the ACC to set aside, in whole or in part, those witness summonses and objecting to the production of certain documents covered by them. This is on the basis that there is no legitimate forensic purpose (NLFP) for the party seeking production to obtain those documents; or that the documents or parts of them are subject to public interest immunity privilege (PII) or that the documents or some of them are subject to legal professional privilege (LPP).
The third task is to consider several fresh witness summonses which have recently been issued by the three accused, again to the CDPP and the ACC seeking the production and inspection of certain specified documents (in range and content more restricted than the previous set of witness summonses already mentioned) and to determine similar applications to set aside and objections made by the CDPP and the ACC to the production of all or any of the documents specified under the latest set of witness summonses issued by the accused, once more on the basis of NLFP, PII and/or LPP.
A common feature of all the witness summonses issued by the accused and fully acknowledged by their counsel in the course of submissions, is that the summonses all seek material and only material which may be relevant to, or capable of supporting, the remaining portion of the accuseds' applications for a permanent stay of this prosecution brought under s 90 of the Criminal Procedure Act relying upon the principles discussed in Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 and Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 and Moti v The Queen [2011] HCA 50; (2011) 86 ALJR 117 ‑ see my earlier reasons for decision in Bartlett v The Queen [2012] WASC 503 [144] ‑ [145].

Existing stay discharged

In the light of the decision in R v Seller; R v McCarthy I am satisfied, and counsel for all the parties accept, that the partial stay of this prosecution ordered on 20 December 2012 should be discharged and at this hearing I made an order discharging that stay. Nevertheless, counsel for each of the accused wish to pursue the application for a permanent stay. They do so, not based on the mere disclosure by the ACC to the CDPP of the transcript and other materials obtained by the ACC from the accused before they were charged as a result of their various compulsory examinations by the ACC under s 28 of the Australian Crime Commission Act (which had been the basis for the previous temporary and partial stay based on the decision at first instance in R v Seller; R v McCarthy [2012] NSWSC 934 on 2 April 2012, which has since been set aside by the decision of the NSW Court of Criminal Appeal). Counsel for the accused propose to set out to satisfy the court that the matters to be relied upon for a permanent stay will establish that is 'an extreme case' involving a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of a trial can relieve against its unfair consequences' ‑ a test taken from R v Glennon [1992] 173 CLR 592, 605 ‑ 606 said by the whole of the court in Dupas v The Queen to be 'an authoritative statement of principle' at [18]. As was said later in Dupas at [35]:
Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences". (references omitted)
Consequently, the applications in the course of this hearing did not entail this residue of the application for the permanent stay of the prosecution being fully argued or arising for final determination. Instead, they focused on the question of whether or not sufficient justification had been demonstrated by the accused to require the remaining witness summonses to be answered and, if so, the extent to which answers were required having regard to objections based on the claims for privilege raised by the respondents to those witness summonses. In the main, but not entirely, the argument centred upon the question of whether any sufficient legitimate forensic purpose had been shown to require compliance with the witness summonses and, as the hearing developed, this in turn concentrated, to a large extent, on whether or not any possible basis for a permanent stay of proceedings could be established if compliance with the witness summonses were to be enforced.

The witness summonses and associated applications

As already indicated, an earlier set of summonses issued by the three accused for the production of documents and other materials by the CDPP and the ACC is no longer being pressed and has recently been replaced by a fresh set of witness summonses directed by each of the accused to both entities. As a result, the accused no longer seek to enforce the first set of such summonses and agree to them being dismissed. Consequently, at this hearing I made orders dismissing the following summonses for the production of documents or other materials:
(a)Summons issued by the first and second accused, Messrs Bartlett and Sayers, to the CDPP dated 25 September 2012.
(b)Summons by the first and second accused, Messrs Bartlett and Sayers, to the ACC dated 25 September 2012.
(c)Summons by the third accused, Grace, to the CDPP dated 28 September 2012.
(d)Summons by the third accused, Grace, to the ACC dated 28 September 2012.
There was one other outstanding summons for the production of documents issued by the first and second respondents, Messrs Bartlett and Sayers, to the ACC dated 10 September 2012. The only contentious issue associated with that summons was whether or not certain documents were the subject of LPP claimed by the ACC. I have since determined those issues of privilege by the decision which I gave on 28 March 2013 ‑ Australian Crime Commission v Bartlett [No 3] [2013] WASC 108.
The new summonses issued by the accused seeking the production of documents are:
(a)Summons by the third accused, Grace, to the CDPP for the production of documents dated 14 March 2013;
(b)Summons by the third accused, Grace, to the ACC for the production of documents dated 14 March 2013;
(c)Summons by first and second accused, Messrs Bartlett and Sayers, to the CDPP for the production of documents dated 19 March 2013;
(d)Summons by first and second accused, Messrs Bartlett and Sayers, to the ACC for the production of documents dated 19 March 2013.
Again, the objections made by the CDPP and the ACC to complying with this new set of summons are NLFP, PII and LPP. By agreement, counsel for the parties have followed the convenient course of treating their earlier written submissions addressing the first set of summonses (now no longer pursued) as applying, mutatis mutandis, to the new set of summonses.

The details of the new summonses

The details of the four new summonses and the documents being sought by them are as follows:
1.Witness summons dated 14 March 2013 issued by the third accused, Grace, to the CDPP. This requires the production to the court of the following.
1.All documents being:
(a)communications to, from or within the Office of the Commonwealth Director of Public Prosecutions (CDPP); or
(b)communications to, from or within the Australian Crime Commissioner (ACC);
referring to or concerning an examination of Mrs Deborah Grace (nee Cammiade) which took place on the following dates:
(i)1 July 2005;
(ii)29 November 2005;
(iii)25 October 2006;
(iv)24 May 2007;
(v)27 September 2007;
(vi)9 December 2009.
(Referred to herein as the 'Grace Examinations')
2.All documents being:
(a)communications to, from or within the CDPP; or
(b)communications to, from or within the ACC;
referring to or concerning written statements of any of the following made to the ACC as part of Operation Haycastle:
(c)Mrs Deborah Jeanne Grace (nee Cammiade) signed on:
(i)25 October 2006;
(ii)27 September 2007.
(Referred to herein as the 'Grace Statements'.)
3.All documents recording dealings by the CDPP or ACC with any of the Grace Examinations or Statements or Thomson Examinations or Statements including within limitation:
(a)time sheets or other documents recording such dealings;
(b)instructions to the CDPP staff as to confidentiality thereof;
(c)summaries thereof;
(d)briefs to counsel or distribution to other persons or entities.
4.All communications between the CDPP and ACC (including but not limited to Mr Robert Philp and Mr David Suiter) concerning the investigation or prosecution of Mrs Deborah Jeanne Grace (nee Cammiade).
5.All logs of documents or material received from the ACC in connection with the investigation or prosecution of Mrs Deborah Jeanne Grace (nee Cammiade), including details on when the material was received and where the documents or material were stored and who has access to the documents or material.
6.Any index to the 41 volume brief and 15 volume brief provided to the CDPP by the ACC in or around February 2010 and August 2011.
7.Any index to a brief to counsel referring to the Grace Examinations or the Grace Statements.
In this summons, 'document' has the same meaning as in the Evidence Act 1995 (Cth).
2.Witness summons dated 19 March 2013 to the CDPP issued on behalf of the first and second accused, Messrs Bartlett and Sayers. This summons required the production by the CDPP of the following.
1.All documents being:
(a)communications to, from or within the Office of the Commonwealth Director of Public Prosecutions (CDPP); or,
(b)communications to, from or within the Australian Crime Commission (ACC),
referring to or concerning an examination of any of the following before the ACC as part of Operation Haycastle:
(c)Mr Peter Mervyn Bartlett on:
(i)24 October 2006;
(ii)10 December 2009;
(iii)17 December 2009.
(d)Mr Ronald George Sayers on:
(i)16 September 2005;
(ii)24 October 2006;
(iii)10 December 2009;
(iv)19 January 2010.
(Together referred to herein as the 'Bartlett/Sayers Examinations.')
2.All documents being:
(a)communications to, from or within the Office of the CDPP; or
(b)communications to, from or within the ACC,
referring to or concerning written statements of any of the following made to the ACC as part of Operation Haycastle:
(c)Mr Peter Mervyn Bartlett on:
(i)24 October 2006.
(d)Mr Ronald George Sayers on:
(i)24 October 2006;
(ii)15 February 2010;
(iii)6 December 2010;
(iv)a date unknown, but comprising 7 pages and served on Mr Ronald George Sayers by the CDPP on 15 December 2011.
(Together referred to herein as the 'Bartlett/Sayers Statements'.)
3.All documents being records of any dealing by the Office of the CDPP or ACC with any of the Bartlett/Sayers Examinations or with any of the Bartlett/Sayers Statements including without limitation:
(a)time sheets of other records of perusal thereof;
(b)instructions to the Office of the CDPP staff as to confidentiality thereof;
(c)summaries thereof;
(d)briefs to counsel or distribution to other persons or entities.
4.All communications between the Office of the CDPP and ACC (including but not limited to Mr Robert Philp and Mr David Suiter) concerning the investigation or prosecution of Mr Peter Mervyn Bartlett and Mr Ronald George Sayers.
5.All logs of documents or material received from the ACC in connection with the investigation or prosecution of Mr Peter Mervyn Bartlett and Mr Ronald George Sayers, including details on when the material was received and where the documents or material were stored and who had access to the documents or material.
6.Any index to the 41 volume brief and 15 volume brief provided to the CDPP by the ACC in or around February 2010 and August 2011.
7.Any index to a brief to counsel referring to the Bartlett/Sayers Examinations or the Bartlett/Sayers Statements.
In this summons, 'document' has the same meaning as in the Evidence Act 1995 (Cth.).
3.Witness summons dated 14 March 2013 addressed to the ACC by the solicitors for the third accused, Ms Deborah Jeanne Grace. This summons requires the production of the following.
1.Documents 2, 11, 14 listed in schedule B and number 6 (2543446) and 31 (2551606) in schedule C of annexure GPP‑6 to the affidavit of Glen Paul Prichard sworn 26 October 2012;
2.All documents comprising or referring to an order or direction (including any variation or revocation thereof) made by the ACC or the CDPP, suppressing or restricting access or use of an examination and/or statement of Deborah Grace (nee Cammiade).
3.All documents containing the reasons for attendance at examination, examiners reasons for making the non publication orders and varying the non‑publication directions made at any of the examinations of Ms Deborah Grace (nee Cammiade), including communications from the Chief Executive Officer of the ACC, his delegate, or the examiner, Mr Sage.
4.The fourth and final summons in this new set is dated 19 March 2013 issued to the ACC on behalf of the first and second accused, Messrs Bartlett and Sayers. It requires the ACC to produce the following.
1.All documents comprising or referring to an order or direction (including any variation or revocation thereof), made by the ACC or the CDPP, suppressing or restricting access or use of any evidence given to the ACC by Mr Peter Mervyn Bartlett and Mr Ronald George Sayers.
2.All documents containing the examiner's and, or alternatively, the CEO's reasons for not making an order under section 25A(9) of the ACC Act or section 25A(11) of the ACC Act respectively prohibiting the publication to the CDPP of any evidence given to the ACC by Mr Peter Mervyn Bartlett and Mr Ronald George Sayers.
In this summons, 'document' has the same meaning as in the Evidence Act 1995 (Cth.).

Applications to set aside the witness summonses

By an application dated 15 October 2012 the CDPP applied for two witness summonses which had then been issued and served upon it by the accused to be set aside pursuant to the court's inherent jurisdiction and/or pursuant to s 166 of the Criminal Procedure Act 2004 namely:
1.Witness summons to produce a record or thing issued by the Supreme Court on 25 September 2012 at the request of the first an second accused and
2.Witness summons to produce a record or thing issued by the Supreme Court on 28 September 2012 at the request of the third accused.
That application, of course, related to the two earlier witness summonses issued by the various accused to the CDPP which have now been dismissed by consent. Because the latest witness summonses issued by the three accused to the CDPP were only issued on 14 and 19 March respectively, that is, in the first case seven days and in the latter case two days before this hearing, there has been insufficient opportunity for the CDPP to issue a fresh application to set the new summonses aside. However, again by the consent of the parties or, at least, without objection, this earlier application by the CDPP to set aside the witness summons has been treated as a suitable vehicle to raise and pursue the objections made by the CDPP to answering the latest set of witness summonses directed to it.

Similarly, there was an earlier application by the ACC to set aside the first set of witness summonses directed to it by the accused. The ACC made a formal application dated 31 October 2012 to set aside:
(a)portion of the written summons issued by Messrs Bartlett and Sayers on 10 September 2012, being the demand for the production of the items listed as 4 and 5;
(b)the whole of the witness summons issued by the accused Bartlett and Sayers dated 25 September 2012;
(c)the whole of the witness summons issued by the third accused, Grace, dated 28 September 2012
both pursuant to the court's inherent jurisdiction and s 166(1) of the CPA. Written submissions were filed in support of that application and by the accused, in opposition to it. As already stated, the summonses by the first and second accused of 10 and 25 September 2012 and the summons by the third accused of 28 September 2012 have been dismissed by consent and replaced by the witness summonses more recently issued. Again, without objection and by consent, the application by the ACC to set aside the earlier summonses has been treated as a sufficient vehicle to apply to set aside the witness summonses now before the court.
Section 159 of the Criminal Procedure Act provides for a prescribed court officer to issue witness summonses on the application of a party to a case and s 166 of the CPA contains a statutory power for the court to set aside any summons so issued. So far as is relevant, s 166 provides:
(1)On an application by the witness, a party to the case or a person who has a sufficient interest in the witness summons, the court that issued a witness summons may cancel it. wholly or in part and on any terms it thinks fit.
(2)On such an application, the court may order a party to the application to pay all or some of another such party's costs.
The CDPP and ACC each rely upon s 166 and upon the inherent jurisdiction of the court to cancel or set aside any such witness summons.

The reach of the witness summonses

Some observations of a general nature may be made about the reach for various documents sought by these witness summonses because, to a significant extent, this has affected the manner in which these applications have been argued. First, for the most part, all the witness summonses seek the production of documents, memoranda and records from within the CDPP and ACC offices which may indicate what use was made of evidence obtained from the accused at the compulsory ACC examinations and to whose attention the evidence from those examinations has come. In making this reference to the evidence from the three accused obtained at the several ACC examinations, I include not only the oral evidence which was given before the examiner and transcribed but also to written statements prepared by the accused either with or without the assistance of ACC staff and then tendered as part of their evidence in the course of their respective oral examinations.
As will emerge later, there is a further sub‑category of such written statements obtained from an examinee who gave evidence in the ACC examinations which is of a rather different character. There is at least one such statement prepared in the name of Ms Grace in conjunction with the ACC staff which, by its very terms, indicates that it was not prepared for, or as part of, the evidence of its author during the compulsory examination but, rather, was prepared in conjunction with ACC staff as a proof of evidence which that author would be willing to give in subsequent court proceedings, including prosecutions, against others if the need arose. Beyond mentioning the existence of this special sub‑category of statements, it is not necessary to consider its significance at this point but I will return to this topic later in these reasons.
To the extent that the witness summonses seek documents or information of this kind, relating to the use made or the extent of disclosure of the contents of the examination products of the three accused before the ACC, it is quite apparent that the accused are not seeking access to the evidence which was obtained from them or any of them in the course of those compulsory examinations. Of course, that is not necessary. They already have that material and have had it for a long time, including the statements which were prepared for them and tendered in the course of the examination. There is, accordingly, no doubt about what is the evidence obtained from each accused in the course of the compulsory examinations. As already remarked, the witness summons are directed only to obtaining material which may disclose what use was made of that evidence by the ACC and, perhaps more significantly, what disclosure of it was made, and by whom, to the CDPP and then what use was made of it, and by whom, at the CDPP office.
The second general observation goes to the remaining reach of the various witness summonses which seek not only documents or materials which may disclose what use was made of the compulsory examination product of the three accused but other specific documents or materials as well. The categories of documents sought by these portions of the various witness summonses may be enumerated as follows:
(a)From the witness summons of 14 March 2013, issued on behalf of the third accused, Ms Grace, to the CDPP:
(i)by par 4, all communications between the CDPP and ACC (including but not limited to Mr Robert Philp and Mr David Suiter) concerning the investigation or prosecution of Ms Deborah Jeanne Grace (nee Cammiade);
(ii)by par 5, all logs of documents or material received from the ACC in connection with the investigation or prosecution of Ms Deborah Jeanne Grace (nee Cammiade), including details on when the material was received and where the documents or material were stored and who had access to the documents or material;
(iii)by par 6, any index to the 41 volume brief and 15 volume brief provided to the CDPP by the ACC in or around February 2010 and August 2011.
(b)In the witness summons dated 19 March 2013, issued on behalf of the first and second accused, Messrs Bartlett and Sayers, to the CDPP:
(i)by par 4, all communications between the Office of the CDPP and ACC (including but not limited to Mr Robert Philp and Mr David Suiter) concerning the investigation or prosecution of Mr Peter Mervyn Bartlett and Mr Ronald George Sayers;
(ii)by par 5, all logs of documents or material received from the ACC in connection with the investigation or prosecution of Mr Peter Mervyn Barlett and Mr Ronald George Sayers, including details on when the material was received and where the documents or material were stored and who had access to the documents or material;
(iii)by par 6, any index to the 41 volume brief and 15 volume brief provided to the CDPP by the ACC in or around February 2010 and August 2011.
(c)The documents referred to in the witness summons dated 14 March 2013 addressed to the ACC on behalf of the third accused, Grace:
(i)by par 2, all documents comprising or referring to an order or direction (including any variation or revocation thereof) made by the ACC or the CDPP, suppressing or restricting access or use of an examination and/or statement of Deborah Grace (nee Cammiade);
(ii)by par 3, all documents containing the reasons for attendance at examination, examiners reasons for making the non‑publication orders and varying the non‑publication directions made at any of the examinations of Ms Deborah Grace (nee Cammiade), including communications from the Chief Executive Officer of the ACC, his delegate, or the examiner, Mr Sage;
(d)By the summons dated 19 March 2013, issued on behalf of the first and second accused, Messrs Bartlett and Sayers, to the ACC:
(i)by par 1, all documents comprising or referring to an order or direction (including any variation or revocation thereof), made by the ACC or the CDPP, suppressing or restricting access or use of any evidence given to the ACC by Mr Peter Mervyn Bartlett and Mr Ronald George Sayers;
(ii)by par 2, all documents containing the examiner's and, or alternatively, the CEO's reasons for not making an order under section 25A(9) of the ACC Act or section 25A(11) of the ACC Act respectively prohibiting the publication to the CDPP of any evidence given to the ACC by Mr Peter Mervyn Bartlett and Mr Ronald George Sayers.
To the extent that these summonses seek the production of all communications and logs of documents and materials held by, or passing between, the CDPP and ACC concerning the investigation or prosecution of any of the accused without limitation, it is apparent that the summonses seek production of an extremely wide category, and it may be inferred a very large volume, of documents bearing on every aspect of the investigation and prosecution of the three accused. This is a demand made for the production of documents which gives no recognition to the obligation of disclosure by the prosecution of all documents relevant to the prosecution as required by s 42 and s 138 of the CPA or otherwise, which has already occurred. Nor does it give any recognition to the fact that, inevitably, significant numbers of such documents may be confidential and subject to PII or LPP having been prepared, sought or assembled for the purpose of investigating suspected crime and prosecuting intended or existing charges. Inevitably, such a demand gives rise to the need to consider whether anything has been demonstrated by the party seeking production of such documents which could be regarded as suggesting that the disclosure required by the prosecution was incomplete or that unsustainable claims for PII or LPP had unjustifiably been made so that there are in existence documents or materials which should be disclosed by the prosecution but which have not been disclosed.
To the extent that the witness summonses seek the production of documents relating to any order or direction of an examiner or any variation or revocation of an order or direction made by the Chief Executive Officer of the ACC, his delegate or the examiner, Mr Sage, concerning any directions or variations made by the examiner or the CEO under s 25A of the ACC Act relating to the suppression or restriction of access or use of compulsory examination product, or reasons for requiring attendance of a witness at the examination, this raises separate and distinct issues requiring a response at two levels.
The first level is that these present proceedings, even a consideration of whether or not there is material which may support a claim by the accused for a permanent stay of proceedings, do not involve any review of any decision by the examiner under s 25A(9) of the ACC Act to grant or restrict publication of the examination product or determining the extent to which such product could be distributed, nor do they involve any review of a decision by the CEO to review or vary any such decision by the examiner. As I pointed out in Bartlett v The Queen [2012] WASC 503 at [96] a failure by an examiner to give any adequate directions under s 25A(9) and, by extension, a CEO under s 25A(11) would be remediable by at least mandamus issued pursuant to s 75(v) of the Constitution or s 39B(1) of the Judiciary Act 1903 (Cth) in proceedings for judicial review. However, the present litigation does not in any way involve a review of the decisions of the examiner or CEO in relation to the disclosure of the examination product. The question for consideration is whether or not there is any feature of the case which, on established principles, would warrant a permanent stay of the proceedings. As explained in the recent Court of Criminal Appeal decision in R v Seller; R v McCarthy at [127] ‑ [128], it is for this court to determine whether there has been any defect or contravention of established principles which would justify a permanent stay and it is not for the ACC or any of its officers to determine, in a manner that would bind or affect this court, whether a publication or use of material would or might lead to an unfair trial ‑ see [128] (Rothman AJA). Accordingly, the basis for any decision which may have led the examiner or, for that matter, the CEO to make or vary any direction under s 25A(9) or (11) of the ACC Act is simply not relevant to any issue to be decided on the foreshadowed application for a stay of these proceedings.
The second level of response to this issue involves leading the court to make an assumption, which has not been advanced expressly by any of the accused in their written or oral submissions, that the conduct of the s 28 examinations against the accused, or some of them, may have originated from, and then pursued, an improper, and therefore unlawful, purpose, being that the examinations were not conducted primarily or predominantly for any of the statutory purposes contemplated by s 7A and 7C of the ACC Act but, rather, for a collateral and indirect purpose of obtaining evidence under compulsory powers which could not otherwise be obtained in order to use that evidence against the examinees in various indirect fashions, in the course of prosecutions which were then intended or anticipated. If such an improper purpose were to be alleged and established, that may, in certain circumstances which were not articulated and which, therefore, cannot be examined, support a claim for a permanent stay or some other form of relief. The very mention of such a possibility gives rise to a set of substantial sub‑issues such as: whether a desire to obtain evidence which may be used indirectly in some future intended or anticipated prosecution is in any way incompatible with the statutory powers and objectives of the ACC; whether indirect use of evidence obtained compulsorily from an examinee can in any real sense be regarded as likely to prejudice the fair trial of any accused; and whether, even if those questions were answered affirmatively, there would not be other remedies available to a trial judge to prevent unfair prejudice at the trial by restricting, if necessary, the admissibility of evidence which may be led at the trial because it had been obtained by improper means ‑ in the exercise of a Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 type discretion ‑ see also Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1.
However, if it were being alleged that the original s 28 examinations had been conducted and pursued for an unlawful collateral purpose and that, as a result, no use of any kind could be made in these proceedings of evidence obtained from them, or indirectly as a result of them, and/or that in the events which have happened the prejudice to the accused resulting from this putative course of events is so great as to be irremediable and to require a permanent stay of proceedings, it would be necessary to identify and consider any evidence which might establish that the examinations were arranged, conducted and pursued for that improper collateral purpose. Such an allegation would need to be distinctly formulated and advanced and there would need to be some semblance of evidence capable of giving rise, if not refuted or explained, to such a finding before the court would embark upon such an investigation. Put in other words, it would not be appropriate simply to cast around generally for evidence which might possibly support such a contention without any existing grounds to support the contention because, to do otherwise, would be to embark upon an objectionable fishing expedition.
In the present case, no express allegations of the conduct by the ACC of compulsory examinations for such an improper or collateral purpose were formulated or advanced, although the possibility of this occurring was referred to in oral submissions by the accused as a potential justification for the reach of some parts of these summonses.
A further category of documents mentioned in the witness summons issued by the third accused to the ACC also requires attention. There are documents 2, 11, 14 listed in schedule D and number 6 (2543446) and 31 (2551606) in sch 3 of annexure GPP‑6 of the affidavit of Glen Paul Prichard sworn 26 October 2012.
That affidavit of Mr G P Prichard to which reference is made in that witness summons filed in support of an application to set aside all parts of three witness summonses served upon the ACC requiring the production of documents, addresses specifically the first set of witness summonses which have now been dismissed by consent but it remains relevant to support the application by the ACC to set aside part or all of the fresh witness summonses now under consideration. By this affidavit Mr Prichard describes a series of correspondence and conferences between the ACC and the accused's solicitors or counsel by which attempts had been made to reach agreement upon or to resolve areas of dispute arising from those previous witness summonses. This showed that a large area of agreement and mutual compliance had resulted but the affidavit went on to support objections by the ACC to the production of various other documents on specified grounds and the application to set aside the previous witness summonses so long as they continued to require production of those documents.
By par 38 of Mr Prichard's affidavit he deposed that on 19 October 2012 the Australian Government Solicitor (AGS) acting for the ACC wrote to the solicitors for Messrs Bartlett and Sayers advising of the ACC's position following conferral. In the course of doing so, Mr Prichard provided a schedule B, identifying all the documents not already disclosed to the defence which would be disclosable by the ACC but for its claims of PII and/or LPP over them. He also provided a schedule C, identifying all the documents in a different category which would be disclosable by the ACC but for its claims of PII and/or LPP over them. So far as is presently relevant, these listed as part of schedule B documents are numbered:

No	Date	Type	Details	Dis-closed	NLFP	PII	LPP
2	2/11/06	Financial matter	Case summary for Commonwealth DPP	N	Y	Y
11	1/05/09	Correspondence	Letter to CDPP re: Prosecution of Deborah Grace	N	Y	Y
14	14/12/09	NEC	Haycastle main brief - Grace narrative sent to CDPP	N	Y	Y

So far as schedule C in the annexure to Mr Prichard's affidavit is concerned, the position is as follows.

No	Case note	Date/Time	Title	Dis-closed	NLFP	PII	LPP
6	2543446	18/05/07 - 19:25	Meeting with CDPP re examining Grace	N	Y
31	2552606	07/05/09 - 12:56	Meeting with CDDP re Thomson, Grace and Main Brief	N	Y

There is extensive further evidence in the affidavit of Mr Prichard of 26 October 2012 and in the affidavit of Ms T C P Ling of 30 October 2012 describing the statutory powers and obligations of the ACC and the CDPP generally and the details of the special investigations known as Operation Wickenby and Operation Haycastle which led to these present investigations and these charges. I have set the details of this evidence out more fully in my reasons for decision in Australian Crime Commission v Bartlett [No 3] [2013] WASC 108 [18] ‑ [38] and further in those reasons at [39] ‑ [47] I examined the submissions of the parties relating to whether or not claims for legal professional privilege could be invoked by the ACC or, for that matter, by the CDPP in relation to confidential documents obtained, prepared or assembled by the ACC and/or the CDPP in respect of the matters which are the subject of this prosecution. There I concluded that the relationship of the ACC and the CDPP, the statutory powers, objectives and the purposes of this investigation were such that, where properly claimed, legal professional privilege would exist for confidential materials prepared or obtained by either the ACC or the CDPP for the purposes of this litigation. In that decision I was required to rule on disputed claims for privilege in respect of certain specified documents and, after inspecting those documents with the consent of the parties, I made those determinations. It is enough for present purposes to say that I am satisfied, for the same reasons, that in appropriate cases claims for legal professional privilege can be made by the ACC in respect of documents obtained, prepared or assembled in relation to the seeking or giving of legal advice by the CDPP in relation to the investigation or any anticipated or pending prosecution and in relation to the materials assembled or obtained of a confidential character for the purposes of that litigation.

This process of communication and consultation between the solicitors for the parties and their respective counsel has, commendably, continued since October and November 2012 and has resulted in a further narrowing of the areas of dispute and also the identification of additional documents in relation to which unresolved claims objecting to the production of specified documents had been made. The latest position which has superseded the documents previously listed and now requiring determination by the court is as follows:
(a)Only three documents remain in dispute in relation to the Grace summons dated 14 March 2013 addressed to the ACC, namely documents numbered 2, 4 and 5 in the schedule of which a claim for LPP is made by the ACC.
(b)Only two documents remain in dispute in relation to the Bartlett and Sayers summons dated 19 March 2013, addressed to the ACC, namely documents numbered 11 and 12, for which claims of LNFP, LPP and PII are made by the ACC.
Schedules identifying these particular documents and the individual claims objecting to production were handed up in the course of argument and accepted by counsel. These reveal the position to be as follows:

Grace summons of 14 March 2013

No	Category	Date	Description	LPP	PII	NLFP
2	Document 11	11/05/09	Letter to CDPP re: prosecution of Deborah Grace	Yes
4	Case note 2543446	18/05/07	Meeting with CDDP re examining Grace	Yes
5	Case note 2551606	07/05/09	Meeting with CDPP re Thomson, Grace and Main Brief	Yes

Documents sought by the Bartlett and Sayers summons to ACC of 19 March 2013

No	Category	Date	Description	LPP	PII	NLFP
11	Variation Application	14/07/09	Minute to Delegate in support of NPD variation	Yes	Yes	Yes
12	Email - 16/07/09	1607/09	Email to Delegate in support of NPD variation	Yes	Yes	Yes

By the agreement of counsel for all parties, copies of those documents have been delivered to the court in a confidential cover for inspection by me, in the absence of the parties, in order to determine the claims for LPP, PII and/or NFLP on the basis of the affidavit evidence and the written and oral submissions. The copies of the documents are not to be disclosed to any other party and must be returned to the ACC upon request unless there is an order by the court permitting such disclosure. I have for the purposes of this application inspected each of those documents. I shall address each such document in order to determine the respective claims for PII, LPP and/or NLFP later in these reasons, after considering more fully the submissions advanced by the parties generally.

Obligation upon applicants for the production of documents to establish a basis for some legitimate purpose for their production

Counsel for both the ACC and for Messrs Bartlett and Sayers made reference to the decision in State of Western Australia v Rayney[No 2] [2012] WASC 38 and the observations of Commissioner Sleight in that case as containing a repository of correct principle for determining legitimate forensic purpose at common law and under the provisions of the CPA. Counsel for the accused Bartlett and Sayers cited Rayney [No 2] for the proposition that common law principles still applied notwithstanding the existence of s 159 of the CPA (see Rayney [27] ‑ [29]) and for the observation by Sleight C that a more liberal approach has been taken to the concept of legitimate forensic purpose in criminal proceedings [10]. Sleight C observed that the test at common law was that the party calling on the summons had to show 'a reasonable possibility that the documents would materially assist the defence case' [23] and that as a threshold issue, the words 'relevant to the case' contained in s 159 of the CPA are to be given a meaning confined to relevance only [28].
A number of the passages in Rayney [No 2] deal directly with issues arising in this case and because they contain, if I may say so with respect, a thorough collection of the applicable authorities, including recent authorities in this jurisdiction, I include them here. Sleight C referred to the inherent jurisdiction of a court at common law to disallow a witness summons which is an abuse of process and explained how a subpoena at common law will be an abuse of process if it is not for a legitimate forensic purpose. His Honour then said at [7]:
At common law it is the duty of the court, where the issue is raised, to require the party calling on a subpoena to identify, expressly and precisely, the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identification is made. (references omitted)
At [13] and [14] Sleight C made reference to the 'on the cards test', to be found in the judgment of Gibbs CJ in Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 where the learned Chief Justice said:
Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.
The learned Commissioner then referred to a series of other cases in which the 'on the cards test' was approved, including Connell v The Queen (No 6) (1994) 12 WAR 133, 203 and drew attention to other cases which demonstrated that it was not without practical difficulties. His Honour referred to the decision of Hall J in State of Western Australia v Kenner & Stanes (Unreported, WASC, 9 July 2009) where his Honour appeared to apply a slightly different test before a summons for the production of a document would be upheld requiring a probability (as opposed to a reasonable possibility) that the document will assist the defence. In that case Hall J stated:
Accordingly, in my view, the accused must firstly clearly identify a basis justifying access to the documents. Secondly, there must be a concrete ground for belief, not merely speculation, that the documents will assist the defence. Thirdly, that there must be a probability of materially assisting the defence. Fourthly, if the matter relates to issues of credibility it must be probable that the documents would have a substantial effect on credibility.
Speaking for myself and without the benefit of full argument, I am inclined to the view that this formulation in Kenner puts the test for the production of the documents at a higher and more rigorous level than contemplated in Alister and for that reason I agree with the formulation eventually adopted by Sleight C in Rayney [No 2] as follows:
[23]Taking into account the different formulations, I conclude the test at common law can be most adequately expressed by using the expression 'a reasonable possibility that the documents will materially assist the defence case'.
But I do not discount or supplant the 'on the cards' test which has been formulated in authorities binding upon me. I treat the test as expressed by Sleight J as being consistent with and an attempt, in less colloquial terms, to formulate the same standard. This certainly appears to be the approach taken by McKechnie J in State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514, 519 where his Honour expressed the test as 'a reasonable possibility that production will materially assist the defence'. In Christie McKechnie J also said:
As I read the authorities to which I have made reference, and the Criminal Procedure Act, there is to be discerned a general intention that in order to ensure a fair trial, the state has an obligation to ensure that the fruits of an investigation are in general terms made available to the defence. There seem to remain, however, two qualifications to that broad‑ranging and general duty. The first qualification is that, at least in matters which are not specifically enumerated within the Criminal Procedure Act as evidentiary material or confessional material, there is an onus on the defence to show some legitimate forensic purpose in the disclosure of the material; that is, a reasonable possibility that production will materially assist the defence …

Submissions by the CDPP

This need for a legitimate forensic purpose to be established in order to support a summons for the production of material which might materially assist the defence is relied upon by the prosecution because of its submission that there has been nothing shown or to be inferred which would show that there is an LFP to support any of these summonses. The prosecution further submits that the summonses are, in addition, oppressive because of the vast number of documents which are potentially encompassed by their terms.
The prosecution responds to an email dated 23 October 2012 from the solicitors for the first and second accused to the CDPP which includes the observations:
… although the CDPP has already conceded, in the context of the recent stay applications brought under the principles set out in the decision of Seller & McCarthy, that there was in fact derivative use by the CDPP of the ACC material (this was done in a letter to me dated 11 October which is attached), there may nevertheless be an outstanding question regarding the timing and extent of that derivative use by the CDPP …
The submissions from the CDPP are that the material provided to the three accused during the disclosure process and the further material provided to each of them subsequent to the judgment at first instance in R v Seller; R v McCarthy (set out in the affidavit of Sean Malcolm Mullins affirmed 16 October 2012) shows that there is no discernible legitimate forensic purpose being advanced. The prosecution submits that, in the context of what it has already provided to the three accused, further enquiry about questions of the time and extent of any derivative use of the examinations and statements connected with the examinations is pointless and cannot assist the accused or the court in adjudicating on the applications of Bartlett, Sayers and Grace permanently to stay the prosecution.
There are three sets of written submissions on behalf of the first and second accused responding to the prosecution's submissions to set aside the earlier witness summonses. Again, with suitable adaptations to account for the new summonses, these are relied upon by the first and second accused to oppose the applications by both the CDPP and the ACC now before the court. They are:
(a)submissions by the first and second accused in response to the submissions by the CDPP of 1 November 2012 filed in support of the prosecution application to set aside the summons dated 25 September 2012 ‑ these submissions are dated 12 November 2012;
(b)submissions by the first and second accused in response to submissions filed on behalf of the ACC dated 5 November 2012 in support of an application to set aside summonses dated 10 and 25 September 2012 - these submissions are dated 12 September 2012;
(c)submissions by the first and second accused in response to submissions filed on behalf of the ACC dated 2 November 2012 - these submissions are dated 12 November 2012.
The third accused relied upon written submissions which had been filed in advance of the first hearing of her stay application which was, to the extent then raised, determined by my decision of 21 December 2012.

Submissions by the ACC

There are a series of written submissions by the ACC in support of the applications to set aside the various earlier witness summonses. Again, these have been treated without objection and by consent as supporting the latest application to set aside the new witness summonses but, necessarily, need to be read with those changes in view. With those qualifications, the written submissions by the ACC comprise:
(a)outline of submissions of 2 November 2012 relating to former witness summons to produce dated 10 September 2012
(b)outline of submissions of 5 November 2012 relating to former witness summons of 31 October 2012;
(c)outline of submissions of 27 November 2012 in response to former witness summons of 1 November 2012;
(d)outline of supplementary submissions dated 14 December 2012 in response to former witness summonses dated 10 September and 1 November 2012;
(e)submissions in respect of the application for stay of prosecution and witness summonses dated 31 January 2013;
(f)submissions in respect of applications to stay prosecution and to set aside witness summonses dated 4 February 2013.
The first of these submissions addresses the demands in items 4 and 5 of the witness summons for 10 September 2012 to produce documents relating to all reasons for the issue of summonses prepared by an examiner as described in s 28 of the ACC Act in relation to witnesses summonsed to appear for examination during Operation Haycastle and item 5 seeking production of all search warrant affidavits, telephone interception warrant affidavits and stored communication warrant affidavit relating to warrants executed during Operation Haycastle in relation to any of the three accused and to the alleged co‑conspirators Thomson and Dunn. They observe that the accused have advised the ACC that they were content to narrow the scope of those items of the summonses to seek only 'material related to factual matters outlined to the respective authorised person in relation to each category of documents'. These materials are said to be 'clearly relevant to our client's foreshadowed application for a stay of the proceedings pursuant to s 90 of the CPA based on the argument in R v Seller; R v McCarthy [2012] NSWSC 934.
These submissions by the ACC also invoke claims of PII over some of the factual material in the examiner's reasons and over all the factual material in the warrant affidavits. The basis for those reasons is set out in the affidavit of Mr G P Prichard sworn 26 September 2012 (Prichard's first open affidavit) and in his first confidential affidavit. However, the latter affidavit was not read on any of these applications and I have not had regard to it.
The submissions refer to the well‑known balancing test required when determining a claim for public interest immunity: Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, 38, 48 ‑ 49; Alister v The Queen (407, 412); Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, 681 ‑ 682, 687, 690; and Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 608, 616 ‑ 617. The ACC relies on the confidentiality of these materials, a factor regarded as important in Australian Broadcasting Commission v Parish (1980) 29 ALR 228, 255 (Deane J) and that immunity can arise in respect of documents relating to police matters and other government agencies investigating offences: Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311 because of the possibility that disclosure may impede police or investigators in the pursuit of criminal activity or may prejudice future investigations.
In the present case, the ACC submits that the public interest goes to the heart of the activities of that organisation which is the major Australian agency (in collaboration with others) charged with the investigation of serious and organised crimes. Even if lack of disclosure of materials subject to PII may cause some handicap to the party seeking disclosure, that is not of itself a reason in favour of disclosure or relaxation of the immunity: Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25, 61 (Mason J), 75 ‑ 77 (Brennan J).
As a result of the material set out in Mr Prichard's open affidavit, I am satisfied that this category of documents is subject to public interest immunity and that the balancing exercise which must be performed does not favour disclosure. I would uphold the claim for legal professional privilege, it being evident that in the instances where it has been claimed the documents were prepared for or obtained as part of a continuing process of obtaining or giving legal advice in connection with the investigation.
Insofar as the accuseds' submissions advance the proposition that no derivative use of material obtained from ACC compulsory examination may be made by investigators, prosecution authorities or the CDPP, I have already rejected that proposition in my first decision in R v Bartlett of December 2012. That proposition was not accepted even by Garling J in his Honour's reasons for decision and it was authoritatively rejected in A v Boulton [2004] FCA 56; (2004) 204 ALR 598. I have canvassed the details of arguments on this issue in my decision of Bartlett in December last and there is no point in repeating them here and now. The issue which remains is what is the effect the decision of the NSW Court of Appeal on this point.
The further submissions of the ACC of 27 November and 14 December 2012 deal largely with claims for legal professional privilege, the principles of which and the factual background of the present case leading to these claims I have already set out in my decision of 28 March 2013: Australian Crime Commission v Bartlett [No 3] [2013] WASC 108.
The later submissions of the ACC of 31 January and 4 February 2013 only address the potential significance of the impending decision of the NSW Court of Criminal Appeal in R v Seller; R v McCarthy and now require no further attention.

Submissions by the first and second accused

By their counsel, Messrs Bartlett and Sayers contend that their case for a permanent stay is premised upon the disclosure by the ACC to the CDPP of evidence given to the ACC by the first and second-named accused and the derivative use of this evidence by the CDPP in its prosecution of them. They contend that authority establishes that such derivative use may be so improper that an order permanently staying a prosecution is justified. They contend that the CDPP has conceded that evidence given by Messrs Bartlett and Sayers to the ACC has been used derivatively by the CDPP, quoting a letter of 11 October 2012 from the CDPP referred to in the affidavit of Mr B D Luscombe sworn 12 October 2012 (the implied restrictions upon the use to be made of this affidavit will be mentioned later). The passage referred to is:
The CDPP wishes to make it plain that it has read, considered and referred the following statements to its counsel prior to a decision being made to prosecute your clients:
-statement of Mr Bartlett dated 24 October 2006;
-statement of Mr Sayers dated 24 October 2006 and 15 February 2010; and
-statement of Ms Grace dated 25 October 2006 and 27 December 2007
The CDPP were provided with the examinations of your clients and any additional statements which were made as a result of or in connection with ACC examinations in order to discharge its disclosure obligations subsequent to a decision to charge your clients with an offence under s 135.4 of the Criminal Code (Cth).
The material disclosed to you and the information conveyed to you to date will enable you to bring an application to permanently stay a prosecution and more importantly will enable relevant information to be put before the Supreme Court and adjudicated upon.
In the circumstances, the CDPP considers the summons to be redundant, too wide, a fishing expedition and given the material previously provided to you lacks a discernible forensic purpose …

Consequently, counsel for the first two accused advanced the following preliminary points about the position of the CDPP:
(a)first, of crucial importance is not merely the fact of any derivative use by the ACC material but the extent of such use;
(b)secondly, it is not for the CDPP to act as the arbiter of whether the defence has a sufficiency of evidence at its disposal to bring an application for a permanent stay; and
(c)thirdly, insofar as the CDPP appears to want to call in aid of its position the fact that it has made disclosure, nothing that the CDPP has disclosed to the defence ‑ save for the concession of derivative use referred to above ‑ goes to the issue of whether there has been further derivative use of the accuseds' ACC evidence other than what has been conceded. For instance, the CDPP does not say that there does not exist any further material showing derivative use by it of the accuseds' ACC evidence.
In support of the contention there is a legitimate forensic purpose involved in the issue of these summonses, counsel for the first and second accused submits that it follows that there must exist at the very least a 'reasonable possibility' that there is material that comes within the terms of the defence's summons that will materially assist the defence case in the sense of showing the full extent of derivative use by the CDPP of the evidence given to the ACC by Bartlett and Sayers. In support of that proposition they submit further that the ACC continued its detailed investigation into the affairs of the accused after their statements were 'read' and considered at some point after 18 March 2008 but before 19 December, when they were charged.
As for the objection raised by the CDPP that the summonses should be set aside because they are oppressive, counsel for the first and second accused respond by saying that the terms of the summonses were modelled on the terms of the subpoena used in R v Seller; R v McCarthy before Garling J and that they are sufficiently particular to allow the documents within their scope to be identified and that the CDPP offered no evidence to support the claim that the volume of material was so extensive as to render compliance with the summons oppressive.
With regard to the similar submissions filed by the first two accused in relation to the summons issued by the ACC to set aside the witness summonses they again canvass the meaning of 'legitimate forensic purpose', referring to State of Western Australia v Rayney [No 2] and other authorities already examined. These submissions rely on the authority of the decision of Garling J at first instance, which has since been overturned. The submission proceeds to develop a series of associated submissions to the effect that it is essential, in order properly to consider and evaluate the prospects of success for the pending application for a stay of proceedings, to know how, by whom and to what extent the ACC examination product was utilised by the CDPP or, in other words, what was the nature and extent of the derivative use made of it. It is then submitted that the summons is tailored to require the production of documents which would show the nature, extent and timing of this derivative use and hence may reasonably be supposed to support the pending application for the stay of proceedings.
In their further submissions of 12 November 2012, dealing with claims for PII and LPP, the submissions for the first and second accused address mainly issues of PII and LPP which have since been resolved by agreement or determined by my decision of 28 March: Australian Crime Commission v Bartlett [No 3] [2013] WASC 108 and, therefore, need not be further examined.

Submissions for the third accused

In amplification of the third accused's written submissions Mr Hill QC submitted that a legitimate forensic purpose was shown by his client's quest for these documents under the witness summonses because it was evident that material obtained by the ACC under compulsion had been disclosed to the CDPP.
Counsel stated that Ms Grace's application for a permanent stay is predicated on the simple premise that dissemination by the ACC to the CDPP of compelled testimony and its consequent derivative use by the CDPP has made it not possible for Ms Grace to receive a fair trial.
In developing these submissions counsel proceeded to emphasise that, contrary to the usual procedure in a criminal trial, the compulsory examination product disclosed to the CDPP meant that the prosecution may know in advance of the trial, or have good grounds for inferring, what defence the accused may raise at her trial, and also know, with much grater particularity than would occur in a conventional prosecution, the evidence which might be given by the accused in defence or explanation of misconduct alleged against her. As the submission developed it included the observation that the examination product effectively disclosed to the prosecution in advance the third accused's defence, and conferred on the prosecution an advantage in preparing for any cross‑examination of the accused with more detailed knowledge of her intended explanations in defence than could occur had her privilege against self‑incrimination at the ACC examinations not been compulsorily overridden.
He identified three classifications or segments of derivative use which he submitted could lead to the grant of a permanent stay of the prosecutions because of their potential to cause prejudice to the fair trial of the third accused. These were:
1.The disclosure included the contents of conference discussions between the CDPP and the ACC at a time when Ms Grace was targeted as a suspect who had committed the offence charged.
2.By reason of the fact that the CDPP had had a hand in such discussions with the ACC at a time when compulsory examinations were being planned, conducted or continued, the prosecution had put itself in the position where it would receive the product of those examinations which have been tailored in a way to address issues relevant to any prosecution. For example, evidence relating to the mental element or component of any suspected offence such as:
•state of mind/intention/presence of absence of circumstances which provide a defence
3.The evidence that would show that the ACC or CDPP provided a copy of Ms Grace's compelled statement to a prosecution witness in the case ‑ namely, Thomson ‑ when he was being proofed as a witness in this present trial.
This led, so it was submitted, to an inference that counsel for the CDPP had read all or parts of Ms Grace's compelled testimony.

Submissions for first and second accused

In oral submissions in support of the validity of the witness summonses issued by the first and second accused their counsel submitted that it was a legitimate forensic purpose to ascertain evidence which would establish that there had been wrongful dissemination of the compulsory examination product or that it had been disseminated or distributed by wrongful means ‑ that is, contrary to s 25A(9) of the ACC Act. He relied on the affidavit of Mr Luscombe, already mentioned, to support an inference that all of the compulsory examination material had been disseminated by the ACC to the CDPP and that some of it was used by the CDPP.
So far as the submissions of counsel for Messrs Barlett and Sayers contend that the disclosure of the product of the examination of the first and second accused by the ACC to the CDPP was improper and in breach of s 25A(9) or (11) of the ACC Act, I must immediately discount them. In all but a few of these examinations the examiner himself expressly considered whether or not an order restricting publication of the examination product should be made under s 25A(9) of the ACC Act and, having decided that an order with certain exceptions should be made, the examiner made his order. Among the exceptions to each of the orders so made by the examiner was an express authorisation that the examination product be supplied to the CDPP or other prosecution agencies. In the few cases where the examiner did not make such an exception or order, his direction was later varied by the chief executive officer exercising the powers available to him under s 25A(11). The exact details and various orders and variations are set out in Bartlett v The Queen [2012] WASC 503 and need not be repeated. There is, therefore, no possibility of a disclosure having been made contrary to the terms of a direction made by an examiner or of the chief executive officer. Such disclosures as did occur were, therefore, made in compliance with, and subject to, the terms of the ACC Act. Mr Boyce's submission should, therefore, be taken as advancing the proposition that the examiner wrongly authorised the disclosure of the examination product to the CDPP and other prosecuting agencies when he should not have done so, but that does not make the disclosure unlawful or improper and, as previously remarked, this is not an occasion to review any such decision made by the examiner or by the CEO. What needs to be done is to consider the impact, if any, of the disclosures which have occurred in the knowledge that derivative use of examination product is permitted under the ACC Act but that the examinees have the benefit of direct use immunity.
Mr Boyce further submitted that the task of determining whether or not there was a legitimate forensic purpose for the first and second accused to seek these materials involved a two‑stage process, the first to determine whether or not there had been dissemination of the compulsory examination product, and the second to identify and determine whether that dissemination involved undue derivative use. This submission was that a prima face case, a plausible case, a reasonable hypothesis existed, or that it was 'on the cards', that the compulsory examination product, or some of it, had been disclosed by the ACC to the CDPP and that this satisfied the first step in the process. By doing so, he submitted that this laid the foundation for a legitimate forensic purpose for proceeding to the second stage, namely to determine the nature and extent of the resulting derivative use. According to the submission, it would be an error to treat these two steps as co‑extensive and, once it had been submitted that there had been dissemination of the compulsory examination product, there was a foundation for suspecting, and hence enquiring, whether there had been subsequent undue or improper derivative use made of them by the prosecution. Again reliance was placed on the affidavit of Mr Luscombe of 12 October 2012, and particularly annexures BDL 20 and BDL 25.
It is appropriate at this point to address the issues raised by the prosecution which arose from the use of this affidavit of Mr Luscombe and its annexures to which passing reference has already been made. This affidavit includes the actual transcripts of the examinations of Messrs Bartlett and Sayers before the ACC examiners when they were required to give evidence and answer all questions notwithstanding claims which they made that the evidence was or had the potential to be self‑incriminating. The annexures also include written statements provided by each accused to the ACC or to the CDPP, some of which became evidence in the examinations. In other words, each of the first two accused, by their solicitors and counsel, had put in evidence and so disclosed to the prosecution in these proceedings the very materials which they are contending should never have been disclosed by the ACC to the CDPP and the disclosure of which forms the foundation for the application for the stay of proceedings. Counsel for the prosecution responded to this course of events by raising the rhetorical question 'What were we to do with the contents of Mr Luscombe's affidavit? Is it to be supposed that we should not have read it?' or words to that effect. However, there are at least two answers to that flourish. The first is that by the time Mr Luscombe's affidavit was filed and served, it was a reasonable inference that all those materials were already in the hands of the CDPP (indeed they were because they had been delivered to the solicitors for the accused as part of the disclosure process as already noted) so that disclosure or dissemination, if that were improper or contrary to law or otherwise prejudicial to any eventual fair trial could not be undone. On this approach it became necessary for this court to be in a position to see and consider just what disclosure had been made so as to be able to measure the adverse effects, if any, upon the prospects of prejudice of any eventual trial in the light of this actual knowledge.
The second answer is that Mr Luscombe's affidavit has only been 'read' in the course of this hearing where the details of the evidence to be considered, the submissions made, and the allegations advanced have all been made subject to a continuing suppression order which, unless discharged or varied, might prevent Mr Luscombe's affidavit being used against these accused at any eventual trial.
It is unnecessary to give further consideration to any potentialities which might arise from this reading of Mr Luscombe's affidavit. What it clearly shows, however, is that so far as the first and second accused are concerned, all the evidence obtained from them by the compulsory examination process under the ACC Act is known and identified.
Consequently, it is possible to consider what, if any, prejudice its disclosure may have or might cause risk to the fairness of any ultimate trial. No other basis for prejudice of an eventual trial is suggested.
Although there is no comparable affidavit filed on behalf of Ms Grace annexing any or all of the evidence which she gave in her several compulsory examinations before the ACC examiner, neither she nor her advisors are under any doubt or uncertainty about the material from those examinations which was obtained and delivered or disseminated to the CDPP. Again, in Ms Grace's case, it is possible to consider and evaluate any actual or potential risk of prejudice to her trial which the disclosure of these materials might be regarded as producing.

Reply by the CDPP

Mr Roberts SC first addressed the submissions which had been made on behalf of Ms Grace that statements provided by her had been obtained by the ACC and handed to the CDPP and discussed with the potential prosecution witness, Mr Thomson. He identified the two statements obtained from Ms Grace which on their face plainly showed that they were not statements given by her or tendered by or against her at her compulsory examinations but were prepared by her as a witness ready to give evidence against other persons in connection with the matters under investigation in court if called upon, but which were not to be used in any prosecution against her. The statements contain paragraphs in which she clearly records that she knew the statement may be used by the ACC or others for proceedings against third persons. Furthermore, as set out in the affidavit of Mr Suiter, sworn 1 November 2012, annexure 5, the disclosure of Ms Grace's statement to Mr Thomson was made in the course of the compulsory disclosure of brief material to Mr Thomson and his advisors at the time when he was arranging to enter a plea of guilty.
Counsel for the accused relied heavily on certain dicta of Bathurst CJ in R v Seller; R v McCarthy [2012] NSWCCA 42 [98] ‑ [99] where the learned Chief Justice said:
[98]Having regard to these authorities it would seem to me that if the privilege against indirect or derivative self‑incrimination had not been abrogated, s 25A(9) and 25A(11) would require a direction to be made prohibiting the dissemination of self‑incriminating material to prosecuting authorities both in the case of a person charged and a person who might be charged. This is because the use of such material by the Crown might prejudice a fair trial in the sense discussed by Gibbs CJ in Hammond [reference] and Sorby [reference] and other members of the High Court in Caltex [reference] in the passages to which I have referred above. Prior to the 2001 amendments, the Act provided two safeguards to a person being examined; first, that the undertaking provided for in s 30(5) be given and, second, the requirement for a direction under s 25A(9).
[99]The question remains whether the amendment to s 30, which had the effect of abrogating the privilege against indirect incrimination, leads to the conclusion that a fair trial for the purpose of s 25A of the Act could not be compromised by the disclosure of direct or indirect incriminating material to prosecuting authorities. In these circumstances, the question is whether the only protection to which an accused or potential accused is entitled is that, at least in the case of answers given and in respect of some documents, the material would not be admissible in evidence. The Crown argued this was the effect of the amendment, at least when the material was disseminated prior to a charge being brought.
[100]I do not agree … However, it does not seem to me that the amendment to s 30 compels a conclusion that s 25A(9) has no application in the case of dissemination of self‑incriminating material to prosecutorial authorities …
[102]that does not mean that s 25A would prohibit all derivative use of the material. So, for example, I do not believe a fair trial generally will be prejudiced by the use of information obtained during the course of an examination to obtain admissible evidence. Thus answers which would tend to indicate the availability of admissible evidence could properly be used for this purpose. For example, in cases such as the present they may include the location of bank accounts. Further, it does not seem to me that the use by the prosecution of documents produced during the course of an examination which supported the Crown case, usually would compromise a fair trial. However, the question of whether derivative use of such material could have that effect will always depend on the material in question and the circumstances of its use.
[103]This in my opinion is consistent with what was said by Mason CJ and Toohey J in Caltex at 503, and by Spigelman CJ in Nutricia [reference] at [164] ‑ [174] … It is also consistent with what was said by McClellan CJ at CL in CB [reference] at [99]. It also means that s 25A would not preclude the ACC from carrying out the investigatory function imposed on it by ss 7A and 12 of the Act.
[104]The position is different in my opinion if the provision of the material \in question discloses defences or exlanations of transactions by the accused which he or she may raise at a trial, and possibly evidence or information which would tend to show that documents or transactions apparently regular on their face in fact tend to support the proposed charges. This would be contrary to the principles stated by Gibbs CJ in Sorby and by Deane, Dawson and Gaudron JJ in Caltex, that the onus is on the Crown to prove its case and that the prosecution must prove it without reliance on incriminating answers. To provide to prosecutorial authorities material compulsorily obtained relating to such matters could comprise a fair trial in accordance with these principles …
…
[106]Two matters much be emphasised. First, it is impossible to state generally the nature and type of dissemination which might prejudice a fair trial. It would depend in all cases on the nature of the material to be disseminated, the function of the person or body to whom the material is to be disseminated and in some cases the timing of the dissemination. Secondly and importantly, s 25A(9) and s 25A(11) of the Act are directed to the question of whether the material might prejudice a fair trial. Any relief given as a result of dissemination contrary to a direction or in circumstances where a direction should have been given, would depend whether in fact the dissemination has compromised the accused's right to a fair trial and what steps are necessary to alleviate the position. I do not understand McClellan CJ at CL to be saying any different in paras [111] and [128] of his judgment in CB. In particular, I do not understand him to say that in all cases where information relating to a defence is furnished to prosecutorial authorities, a stay should be granted. If that his what his Honour was saying, I would respectfully disagree.

Rothman AJA agreed in the conclusions of the Chief Justice and in the result that the decision of Garling J should be set aside. His Honour also stressed that it did not follow as a matter of logic or necessity that disclosure of material to a prosecuting authority, even if in breach of a direction under s 29A, would of necessity be prejudicial to a fair trial of the accused, indicating that the particular circumstances would need to be scrutinised in any such case (see [127] ‑ [129] and [134]).
The exact basis for setting aside the decision of Garling J at first instance in the case of R v Sellers; R v McCarthy was stated by Bathurst CJ at [112] where his Honour said:
With the greatest respect to his Honour, he erred in the exercise of his discretion in failing to consider whether in fact the dissemination of the material and its reading by some officers of the CDPP resulted in a fundamental defect in the trial process such that a stay should be ordered. The primary judge, whilst correctly concluding that there was a risk of prejudice such that a direction should have been given, did not consider whether such prejudice had in fact occurred. It was apparent from the conclusion in par [203] of his judgment that he took the view that a stay should be granted whenever there was communication of a person's defence in any form including derivative information to prosecutorial authorities, or where there was a real risk that such communication would occur: judgment at [203](g) …
At the hearing of this application there was repeated reference by counsel for the first and second accused to passages in the judgment of Garling J in R v Seller; R v McCarthy [2012] NSWSC 934 such as [79] ‑ [81] where his Honour focussed on contents of the compulsory examination of the examinee which dealt with factual matters central to the charge that he was subsequently confronted with. This also addressed his defence to that charge, and additionally covered the examinee's view of the nature and structure of the arrangements and to a limited extent whether there were any features of dishonesty involved with various parts of the ventures. These passages clearly engaged his privilege against self‑incrimination both generally and in respect of the specific charges subsequently laid. These indicated, so counsel submitted, that an examination which touched on such aspects which were central to the focus of the subsequent prosecution, and particularly to the mental elements or knowledge of the examinee, were aspects of incriminating material which, if disclosed to prosecution authorities, might risk prejudice to an eventual fair trial.
The submissions for the accused in the present case were that in the compulsory examinations of the present accused the evidence ranged over the history and nature of the various financial transactions and minutes and the roles of the individuals in preparing them plainly touched on facts likely to be in issue in the present prosecution. So it was contended that the endorsement of Bathurst CJ at [102] and [104] that there may be occasions in which disclosure may involve a risk of prejudice to a fair trial and that a court may need to consider whether or not to grant a permanent stay meant that this case was one of them.
I do not think that that is so and there is nothing in the judgments in R v Sellers; R v McCarthy which would support such a conclusion. When pressed on the point, counsel for the accused was unable to cite one single instance of a case reported in Australia where a permanent stay of proceedings in a criminal prosecution had been granted by reason of disclosure by the ACC of compulsory examination product except for the decision of Garling J at first instance in R v Seller; R v McCarthy which has now been set aside. The judgments in the Court of Criminal Appeal in R v Seller; R v McCarthy acknowledge that it is possible that there may be instances in which disclosure of this kind may require a permanent stay of a subsequent prosecution. That can be accepted. But, despite being pressed on this point, counsel were unable to give any actual or hypothetical example or illustration of circumstances where that may be so. The possibility exists but it is hard to visualise. Merely because it cannot be ruled out does not mean that this case, or any particular case, is an example of where such a stay should be ordered.
By this point the submissions dealing with these applications had progressed beyond the point of considering merely whether or not the applications to set aside the witness summonses should themselves be upheld. This was because of the need, when considering whether or not there had been any legitimate forensic purpose established for the witness summonses, to consider what might possibly be revealed if they were answered. It is true that comprehensive answers to the witness summonses without restriction may provide information about the extent to which derivative use, if any, was made of the examination product, by whom it was made and when it was made, but none of that would enlarge upon or clarify the information which was disclosed or disseminated. We already know precisely what that is. Yet there was a conspicuous absence of attention in the submissions for the accused to the details of the examination product and certainly no identification or suggestion of any particular parts of the examination, passages of the evidence or admissions or information divulged which, if conveyed to the CDPP or to the prosecutors conducting this case, would have the effect of creating a risk of an unfair trial. There was nothing done to attempt the exercise which the Court of Criminal Appeal concluded Garling J should have undertaken in determining the significance of disclosures in R v Seller; R v McCarthy.
There is no clear suggestion of how information obtained from the compulsory examination product disclosed to the CDPP could damage or prejudice the case of any of the accused either at all or to such an extent that it could not be remedied by any decision or direction of a trial judge. There was, of course, broad reference to the fact that the prosecution would be apprised of any likely defence of the accused, although no details of the mechanics of this were advanced. It was also suggested that, by being apprised of extensive explanations given by the accused when subjected to compulsory examination, this would provide an advantage to any cross‑examiner at trial ‑ but again no suggestion or specification of how this might create a risk of prejudice to a fair trial.
It may be acknowledged that the more that the prosecution may know about an accused's role in the events leading to or involving an alleged offence, the better is the prosecution able to prosecute the case and refute any untruthful explanations given by an accused in the course of a trial, but this is a situation which is plainly envisaged by Parliament when excluding privilege from derivative use of such examination product and limiting the privilege against self‑incrimination to direct use immunity. This was the conclusion reached by Weinberg J in A v Boulton [2004] FCA 56; (2004) 204 ALR 598, affirmed on appeal in A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420, as discussed in my earlier decision in Bartlett v The Queen [2012] WASC 503 at [86] ‑ [94]. I note that in the NSW Court of Criminal Appeal Bathurst CJ observed at [81] that he agreed with the interpretation placed on s 30 of the ACC Act by Weinberg J in A v Boulton and by the Full Court of the Federal Court in the subsequent appeal, and that he believed them to be correct.
Accordingly, in the present instance, I am satisfied that no case has been made out to show that compliance with the witness summonses issued by the accused relating to materials in the possession of the CDPP or ACC concerning the conduct of, participation in or the use made of the examination product resulting from the compulsory examinations of any the accused by the ACC has any prospect of establishing that its disclosure or derivative use may create such a risk of prejudice to any fair trial of the accused that a permanent stay of proceedings may be warranted on the principles discussed in Dupas v The Queen, Jago v District Court of New South Wales or Moti v The Queen. It follows that no legitimate forensic purpose has been established to support the witness summonses in their quest for those materials and, consequently, I consider that I should uphold the applications by the CDPP and the ACC to strike out those portions of those summonses which have been the subject of contested issues on this application, that is insofar as they have not been voluntarily complied with by the ACC and the CDPP to this date.
There is one further matter and it relates to the claims for privilege or PII over the five individual documents which remain in contention following the processes of communication between the parties as mentioned earlier in these reasons.

Claims for public interest immunity and/or legal professional privilege

As earlier stated, these claims relate only to certain documents in the possession of the ACC and, by agreement, the field has been narrowed to five such documents, three of which are sought by the accused Grace and the remaining two of which are sought by the accused Bartlett and Sayers.
Counsel have also agreed that if the new witness summonses issued by each of the accused are set aside on the applications of the CDPP and the ACC because of the absence of any legitimate forensic purpose then that of itself would render it unnecessary to deal with these questions of PII and LPP.
However, without regard to my decision on NLFP I have inspected each of these documents and considered the submissions made in relation to the claims of privilege from production. The claims supporting PII and LPP are contained in the affidavits of Mr Prichard of 26 November 2012 and of 13 December 2012 which were 'read' in support of the claimed immunity from production. I am satisfied from the affidavits of Mr Prichard that each of the documents is confidential and for those being items 2, 4, 5, 11 and 12 for which LPP is invoked were prepared, obtained or assembled for the purposes of giving or receiving confidential legal advice for the purposes of the conduct of the investigations by the ACC and/or in relation to the preparation for and pursuit of criminal charges which were then under consideration, anticipated or pending. Insofar as the claims relate to PII, being items 11 and 12, I am satisfied that they were prepared for or comprise part of confidential records of the ACC as part of its statutory responsibilities for the investigation of criminal activities and which form part of the method and nature of these investigations which, if disclosed, would be damaging to the public interest by alerting others who may be the target of investigations to the nature, methods and style of operations by the ACC. I do not consider that withholding production of these documents is likely to cause any detriment to the accused in the present case or, if it did, any such detriment would only be very minor and greatly outbalanced by the need to preserve the confidentiality of the operations of the ACC in the public interest. For that reason, I would uphold both the claims for LPP and PII in respect of the documents as they are claimed.
With respect to the individual documents which I have inspected, they are:
On Grace summons 2:
(a)Document 11, 11/5/09, letter to CDPP re prosecution of Deborah Grace, claim for LPP. This is a letter by the ACC to the CDPP seeking legal advice as to the potential significance of four matters arising from the investigation of D J Grace and, in particular, upon the significance of certain evidence then obtained.
I am satisfied that this is a document in respect of which LPP can properly be claimed.
(b)Document 4, case note 2543446, 18/5/07, meeting with CDPP re examining Grace, claim for LPP. This is a case note prepared within the ACC relating to a meeting between one of its officers and an officer of the CDPP about the potential significance of a potential re‑examination of D Grace. It records the results of a meeting between investigators of the ACC and officers of the CDPP at which advice on the subject sought was given and recorded.
I am satisfied that this is a document in respect of which the claim for LPP can properly be made.
(c)Document 5, case note 2112606, 7/5/09, meeting with CDPP re Thomson, Grace and main brief for which LPP is claimed. This is a case note recording a meeting between ACC Haycastle team members and CDPP case officers to discuss matters relating to T Thomson, D Grace and the main brief. It records their evaluation of evidence then to hand and the role of another named person. So far as concerns Grace, her alleged involvement in the transactions was discussed and the potential significance or utility of further investigations was considered. It records a request by the ACC to seek formal advice from the CDPP upon the significance of evidence concerning Grace and incidental matters.
I am satisfied that this is a document in respect of which the claim for LPP can property be maintained.
The Bartlett and Sayers summons. This relates only to two documents:
(a)Document 11, variation application, 14/7/09, minute to delegate in support of NPD variation. Claim for LPP, PII and NFLP. This is a minute from a legal officer of the ACC to a senior legal advisor setting out the details of and the basis for a variation of non-publication directions made in respect of certain examinations under s 25A(9) of the ACC Act. It records the purpose for which the variations are sought and gives details of a criminal charge against one person in respect of which disclosure of materials was desired. The memorandum is accompanied by a lengthy attachment indicating the details of the several witness examinations in respect of which variations were sought, which include but are by no means limited to Messrs Bartlett and Sayers and Ms Grace, which are then followed by the formal variations by a delegate of the CEO followed by a schedule identifying the many witnesses whose evidence is affected by the variations with details.
Apart from the variations relating to the three accused, which I assume have already been disclosed, I am satisfied that the reference to the names of the other witnesses relates to confidential information which is the subject of PII and that the balance of the document comprises information for which LPP can properly be claimed. If, in fact, there has not been disclosure of the actual variations by the delegate of the CEO in respect of the three accused then, for reasons already given, there is NLFP to require their production under this summons.
(b)Document 12, 16/7/09, email to delegate in support of NPD variations, claims for LPP, PII and NFLP. This is an email from an ACC manager to a senior legal advisor at the ACC giving details of certain examination transcripts not in the brief and it identifies documents which were not then part of the prosecution brief with comments on the possibility of future disclosure.
I am satisfied that it is an internal confidential document for which PII is property invoked and that it also constitutes material for which a claim of LPP can be maintained. In any event, there is NLFP in requiring its production.

Conclusion

For these reasons, I consider that the applications by the CDPP and by the ACC to set aside the latest witness summonses issued by each of the accused for the production of documents dated 14 March 2013 and 19 March 2013 should succeed and that those summonses should be set aside.