R v C - [2013] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v C
[2013] SADC 36
Ruling of His Honour Judge Soulio
22 March 2013
CRIMINAL LAW - PROCEDURE
Applicant charged with two counts of refusing to answer a question at an Australian Crime Commission Examination - application to permanently stay proceedings or exclude evidence.
Application refused.
Australian Crime Commission Act 2002 (Cth) ss 28, 30; District Court Criminal Rules 2006 rr 8, 9, referred to.
Australian Crime Commission v Marrapodi [2012] WASCA 103; R v LB (2011) 246 FLR 466; Australian Crime Commission v LB (2009) 25 NTLR 30; R v LB [2010] 26 NTLR 209; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No.2) (1944) 69 CLR 407; Australian Crime Commission v NTD8 (2009) 177 FCR 263; Australian Crime Commission v LB (2009) 25 NTLR 30; Williams v Spautz (1992) 174 CLR 509; R v Seller R v McCarthy [2012] NSWSC 934, considered.

R v C
[2013] SADC 36
Introduction

The accused, SC, is charged with two counts of refusing to answer a question at an Examination by the Australian Crime Commission (‘the ACC’), contrary to s 30(2)(b) and s 30(6) of the Australian Crime Commission Act 2002 (Cth) (‘the Act’).
The particulars of the offence, in each case, are that SC, on 21 October 2009 at Adelaide, being a person appearing as a witness at an Examination before an Examiner of the ACC, refused to answer a question that he was required to answer by the Examiner.
The accused asserts that he was not validly summoned to appear before the Examiner, and that the ACC, in breach of a non-publication order, published material relating to the Examination, and as a consequence the charges should be stayed.
The Information charging SC was laid on 9 July 2010. He was committed for trial and initially arraigned on 22 November 2010 in this Court.
During the course of the preparation of the defence, the accused’s solicitors issued a subpoena directed to the ACC seeking production of three documents, namely, the Reasons for the Issue of a summons pursuant to s 28(1) of the Act (‘Reasons document’); the Statement of Facts and Circumstances, prepared in support of the issue of the summons (‘Facts and Circumstances document’); and any record of Legal Submissions in support of the issue of the summons (‘Legal Submissions document’).
The ACC made a claim for public interest immunity, and the ruling of Boylan DCJ, delivered on 16 December 2011, upheld that claim.
The Present Application
In Australian Crime Commission v Marrapodi, a case where the accused had also been summoned to appear before the ACC and had refused to answer questions, Allanson J observed:[1]
In summary, the respondents cannot, in review proceedings or otherwise, challenge the validity of the summons on the grounds of the adequacy of the examiner's reasons. The respondents may, however, challenge the validity of the summons issued by the examiner on the basis that he exceeded his statutory powers.
…
In the present case, if the examiner did not lawfully exercise his power in issuing the summons then none of the respondents was a person required to attend before the examiner. As discussed above, there is authority that the validity of the summons affects whether the examiner has power to require a person to be sworn. And, in my opinion, the same reasoning may apply to whether the examiner has power to require a person to answer questions.
Further, even if the existence of the (valid) summons is not an element of the charge, the validity of the summons may be lawfully questioned in the criminal proceedings in other ways.
Whether the respondents were validly summoned to appear before the examiner is a question of law. Should the respondents challenge the summons, that challenge would be dealt with by the judge alone, preferably in a pre-trial ruling.
[1] Australian Crime Commission v Marrapodi [2012] WASCA 103 at [125], [141]-[143].
On 12 December 2012 the accused issued an application pursuant to Rule 9 of the District Court Criminal Rules[2] seeking to challenge the admissibility of the evidence sought to be tendered by the Commonwealth Director of Public Prosecutions (‘CDPP’) in the prosecution case.
[2] Now Rule 15 District Court Criminal Rules, as from 1 January 2013.
The grounds upon which the admissibility was challenged, as set out in the application, are as follows:
1 An essential element of the offence contravening s 30(2)(b) of the Australian Crime Commission Act 2002 (Commonwealth) (“ACCA”) is proof of the service of a valid Summons under s 28(1) ACCA. The applicant contends that the reasons of the issue of a Summons pursuant to subsection 28(1) ACCA (S0448/09) do not comply with s 28(1A) ACCA and therefore the Summons was invalid and the consequential purported requirement on the part of the applicant to answer questions put to him by the examiner or through counsel for the ACC was unlawful.
2 All of the evidence upon which the prosecution seeks to rely in proof of both charges is inadmissible by virtue of the use of immunity available pursuant to s 30 of the ACC Act, the privilege having been claimed by the applicant.
3 The examiner, having made directions pursuant to subsection 25A(9) of the Australian Crime Commission Act, which directions remain in force, there is an express prohibition on any of the proposed evidence sought to be relied on by the Commonwealth DPP being admitted or disclosed in court or presented to the jury in support of the charges alleged on the Information.
The application came on for hearing in this Court on 17 December 2012. The accused sought and was granted permission to amend the application to seek, in the alternative, an order that the Information be permanently stayed as an abuse of process. The application for a stay was brought pursuant to Rule 8 of the District Court Criminal Rules.[3] During the course of argument Ground 2 was, quite properly, abandoned and it is necessary to consider only Grounds 1 and 3.
[3] Now Rule 14 District Court Criminal Rules, as from 1 January 2013.
The Legislative Provisions
Section 28 of the Act relevantly provides:
(1)   An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons.
(1A)Before issuing a summons under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the summons. The record is to be made:
(a)before the issue of the summons; or
(b)at the same time as the issue of the summons.
(2)   A summons under subsection (1) requiring a person to appear before an examiner at an examination must be accompanied by a copy of the determination of the Board that the intelligence operation is a special operation or that the investigation into matters relating to federally relevant criminal activity is a special investigation.
(3)   A summons under subsection (1) requiring a person to appear before an examiner at an examination shall, unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned, but nothing in this subsection prevents an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation.
(4)   ...
(5)   An examiner may, at an examination, take evidence on oath or affirmation and for that purpose:
(a)    the examiner may require a person appearing at the examination to give evidence either to take an oath or to make an affirmation in a form approved by the examiner; and
(b)   the examiner, or a person who is an authorised person in relation to the ACC, may administer an oath or affirmation to a person so appearing at the examination.
…
Section 30 of the Act relevantly provides:
Failure to attend
(1)   A person served, as prescribed, with a summons to appear as a witness at an examination before an examiner shall not:
(a)    fail to attend as required by the summons; or
(b)   fail to attend from day to day unless excused, or released from further attendance, by the examiner.
Failure to answer questions etc.
(2)   A person appearing as a witness at an examination before an examiner shall not:
(a) when required pursuant to section 28 either to take an oath or make an affirmation--refuse or fail to comply with the requirement;
(b)   refuse or fail to answer a question that he or she is required to answer by the examiner; or
(c)    refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
(3)   …
Use immunity available in some cases if self-incrimination claimed
(4)   Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:
(a)    a person appearing as a witness at an examination before an examiner:
(i)answers a question that he or she is required to answer by the examiner; or
(ii)produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
(b)   …
(c)    before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.
(5)   The answer, or the document or thing, is not admissible in evidence against the person in:
(a)    a criminal proceeding; or
(b) a proceeding for the imposition of a penalty;
other than:
(b)   confiscation proceedings; or
(c)    a proceeding in respect of:
(i)in the case of an answer--the falsity of the answer; or
(ii)in the case of the production of a document--the falsity of any statement contained in the document.
Offence for contravention of subsection (1), (2) or (3)
(6)   A person who contravenes subsection (1), (2) or (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine … or imprisonment for a period not exceeding 5 years.
…
Ground 1
In relation to Ground 1, the accused relied on the decisions in R v LB[4] and Australian Crime Commission v Marrapodi.[5]
[4] R v LB (2011) 246 FLR 466.
[5] Australian Crime Commission v Marrapodi [2012] WASCA 103.
In R v LB the Court of Criminal Appeal of the Northern Territory was called upon to deal with an appeal by the CDPP, from an order of Southwood J, permanently staying an indictment against the respondent, who had been charged with refusing or failing to comply with a requirement that he take an oath or make an affirmation, contrary to s 30(2)(a) of the Act.
There, the respondent had served a subpoena on the ACC, seeking production of “any reasons which Examiner Anderson recorded pursuant to s 28 of the Act as his reasons for being satisfied that it was reasonable in all the circumstances to issue a s 28 summons to the respondent”.
The ACC filed a summons seeking to set aside that subpoena. Southwood J, at first instance, held that there was a legitimate forensic exercise justifying the issue of the subpoena, that is, in order to ensure a fair trial, and said:[6]
In order to prove its case against the respondent the Crown has stated that it will be relying on the presumption of regularity to prove the case against the respondent. The Crown has said so in circumstances where all of the information which is relevant to the establishment of the alleged jurisdiction of the examiner to require the respondent to take an oath or make an affirmation is within the possession of the Australian Crime Commission. The scope and purpose for which the documents are sought has been specified. The issues arising for consideration are clearly defined. The enquiry is confined to checking if the essential requirements of the relevant jurisdiction of the examiner under the Act have been complied with. The documents are relevant to those issues and the documents have been precisely identified. The production of the documents is required for there to be a fair trial. To refuse production of the documents would leave the respondent with a legitimate sense of grievance. It would leave him with no ability to test the evidence which is relied on to establish the presumption of regularity in relation to a core aspect of the Crown's case against him.
[6] Australian Crime Commission v LB (2009) 25 NTLR 30 at [47].
The principal issue relied upon by the accused in the present case, and by the respondent in R v LB, was that the summons requiring the attendance of the respondent before the Examiner was invalid, because the Examiner, before issuing the summons, had not been satisfied that it was “reasonable in all the circumstances” to issue the summons, as was required by s 28(1A) of the Act. That, it was submitted, meant that the Examiner lacked jurisdiction to require the respondent to take an oath or make an affirmation at the proposed Examination, or in the present case, answer questions at such an Examination.
Consistent with the provisions of the Act, there must be bona fide and rational reasons for the issue of a summons to a particular person in respect of a specific special ACC operation or investigation; the Examiner must direct his mind as to how and why the issue of a summons to a particular person would further the purposes of that operation or Examination; and the Examiner must consider the matters about which the person who is to be summoned is to be questioned. Southwood J held that these were essential and indispensable requirements for the issue of a valid summons.[7]
[7] See R v LB (2011) 246 FLR 466 at [16] and [17].
At the hearing before Southwood J, a document signed by the Examiner as a record of his decision to issue the summons, was tendered. Southwood J said:[8]
Nowhere in the record of his decision to issue the summons did Mr Anderson state why the summons was issued or why Mr Anderson was satisfied it was reasonable in all the circumstances to issue the summons. The requirement for there to be reasons is a requirement for there to be a reasoning process which is identifiable and leads to the necessary conclusion. The record of the examiner's decision to issue the summons⁷ only records Mr Anderson's satisfaction with various aspects of the process and Mr Anderson was not called to give evidence about his reasons, if any, for being so satisfied and for issuing the summons to the accused.
[8] R v LB [2010] 26 NTLR 209 at [46]-[47].
Southwood J held that in the absence of written reasons for issuing the summons, and in the absence of the Examiner being called to give evidence about the reasons for issuing the summons, a reasonable inference was that the Examiner failed to turn his mind to the reasons for issuing the summons to the accused, or that there were no valid reasons for the issue of the summons, and that he could not have been satisfied that it was reasonable in all the circumstances to issue the summons. Southwood J concluded that the summons was invalid, and that the Examiner had lacked the jurisdiction to require the respondent to take an oath or make an affirmation. He ordered that the proceedings be permanently stayed.[9]
[9] See R v LB (2011) 246 FLR 466 at [19].
On appeal in R v LB the Court accepted that s 28(1A) of the Act did not comprise a jurisdictional fact such that, on a collateral challenge to the validity of the summons, it was a matter for the Court itself to be satisfied that the issue of the summons was reasonable in all the circumstances.[10]
[10] See R v LB (2011) 246 FLR 466 at [28].
The question was whether the Examiner could have attained that satisfaction, in the sense explained in the joint judgment of Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng.[11]
[11] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73].
The Northern Territory Court of Criminal Appeal in R v LB referred to Minister for Immigration and Multicultural Affairs v Eshetu[12] where Gummow J reviewed the relevant authorities, and cited with approval passages in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No.2),[13] where Latham CJ said:
[Where] the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. …
It should be emphasised that the application of the principal now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to enquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bone fide.
[12] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [133]-[137].
[13] R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No.2) (1944) 69 CLR 407 at 430 and 432.
The Court in R v LB went on to say that if there is simply no evidence at all upon which the decision could have been formed by a reasonable person who correctly understood the law, then similarly there was no basis for the exercise of the power.[14]
[14] R v LB, citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [144]-[145], per Gummow J.
The Court in R v LB criticised the paucity of the Examiner’s reasons, and referred to the observation by the Full Court in Australian Crime Commission v NTD8 that Examiner’s Reasons are laconic, formulaic, and often unhelpful. They appear to tick boxes, and that “the statement of facts and circumstances was uninformative.” [15]
[15] Australian Crime Commission v NTD8 (2009) 177 FCR 263 at [73].
Importantly for present purposes, the Court in R v LB, in dismissing the appeal, said that it was necessary to bear in mind the course of the proceedings. As I have said, there the respondent had subpoenaed the Examiner’s Reasons. On the hearing of the voir dire the only evidence tendered was the Reasons document provided by the Examiner, tendered by counsel for the respondent. Counsel for the appellant had led no evidence. On appeal, the Court said:[16]
The reasons on their face were not reasons at all. By their nature, reasons imply that the examiner has considered the facts and the law and by a process of reasoning reached a certain conclusion. The statement of reasons did nothing of the sort. The respondent having raised the issue in this way, it was open to the learned trial judge to take into account that the Crown called no evidence. No explanation was given to the learned trial judge as to why the examiner was not called to give evidence or as to why the remaining documents were not tendered by the Crown. … It was open to the learned trial judge to draw the inference that such evidence would not have supported the Crown's case … and more confidently draw an inference that there were no reasons.
[16] R v LB (2011) 246 FLR 466 at [41].

The alternative argument put on behalf of the ACC on appeal in R v LB was that the Examiner’s Reasons incorporated, by reference, a “statement of facts and circumstances” and “legal submissions” neither of which were tendered on the voir dire. The court dismissed that submission saying that whilst the Reasons document did refer to the other documents, nowhere did the Reasons document explain the relevance of any of that material, or set out any reasoning process by reference to that material.
The decision in R v LB was considered in Australian Crime Commission v Marrapodi,[17] in the context of an appeal against the decision of a District Court judge refusing to set aside a subpoena for production of documents served on the ACC. The Western Australian Court of Appeal dismissed the appeal.[18]
[17] Australian Crime Commission v Marrapodi [2012] WASCA 103.
[18] Ibid per McLure P and Allanson J.
McClure P said that the text of s 30 of the Act supports a conclusion that service of a summons under s 28(1) is not an element of the offence of contravening s 30(2)(b) of the Act, but went on to say:[19]
[19] Australian Crime Commission v Marrapodi [2012] WASCA 103 at [39]-[41].
However, that is not the end of the matter. In my view, it is arguable that if a person does attend at an examination under compulsion of a summons pursuant to s 28(1), the powers of the examiner in s 28(5) and s 30(2)(b) will not be enlivened if the initiating compulsory process that secures the person's attendance is invalid. That is, if a witness attends under compulsion of a summons, the validity of the summons is not an element of the contravention of s 30(2)(b) but is a condition of the power of the examiner to require that witness to answer a question. If it was necessary for the resolution of these appeals to determine this issue, I would so conclude. However, it is not necessary because all roads lead to the same result and the parties did not put their cases on this basis.
The construction I favour is inconsistent with that of the Court of Criminal Appeal of the Northern Territory in R v LB (2011) 163 NTR 1. The question in issue in that case was whether service of a valid summons is an element of the offence of contravening s 30(2)(a) of the Act. The court said it was. It reasoned:
The words in s 30(2), "appearing as a witness", are apt to describe a person who has received a valid summons to so appear. When one turns to s 28(1), it is clear that the parliament intended to provide a power in an examiner to "summon a person to appear before an examiner at an examination to give evidence". Without such a power, an examiner could not compel attendance of a person to appear as a witness to give evidence ...
In our opinion, the scheme of the Act contemplates that the power to insist upon the taking of an oath or affirmation means that a person can only be required or compelled to take the oath if the summons is valid. If the examiner had no power to issue the summons, it is difficult to see how a person is, in terms of s 28(2), required to appear before an examiner at an examination and, unless he is so compellable, in our opinion, he is not "appearing as a witness". Even if a person did appear voluntarily without a summons, that does not mean that the witness could be required to be sworn. The witness may change his or her mind. His or her status as a witness would then change; the person would no longer be appearing as a witness [61] - [62]. (emphasis in original)
On this reasoning, a person appearing at an examination is only a witness if they have been served with a summons under s 28(1). The summons must also be valid. On that view, it must follow that the service of a valid summons is an element of the offence of contravening s 30(2)(b). This court can only depart from R v LB if convinced that it is plainly wrong. Although I differ from the Northern Territory Court of Criminal Appeal on the proper construction of s 30(2) of the Act, I am not convinced it is plainly wrong.
For the reasons given by Allanson J, the decision of the Full Court of the Federal Court in JJ v Board of Australian Crime Commission (2011) 197 FCR 138 is not inconsistent with R v LB on the subject of the proper construction of s 28 and s 30(2) of the Act.
The existence and service of a summons are questions of fact. However, the validity of the summons is a question of law. Whether the presumption of regularity (or validity) applies to an element of an offence has not been authoritatively determined. I see no basis in principle to support a claim that a legal burden shifts to an accused in those circumstances. (citations omitted)
As to the suggested conflict between the decision in R v LB, and that in JJ v Board of the Australian Crime Commission & Ors, Allanson J said:[20]
The appellant submitted before the trial judge that he should follow JJ v ACC, and not R v LB. Grounds 3 and 4 of the appeal contend that his Honour erred in following the Court of Appeal (NT) and in failing to follow the reasoning of the Full Court of the Federal Court in JJ v ACC.
It is not necessary to resolve the difference between the JJ v ACC and R v LB - the difference, in my opinion, concerns the inferences which the court was prepared to draw from the examiner's recorded reasons. The cases are not inconsistent regarding the proper construction of s 30. The Federal Court did not address the relationship between the validity of the summons and the power of the examiner to require a person to take the oath and answer questions.
[20] Ibid at [119] and [123].
He went on to say, with respect to the way the Reasons might be used in a case such as the present:[21]
I accept that the reasons required by s 28(1A) are not for the purpose of informing either the person summoned, or a court reviewing the decision to issue a summons. But that does not mean that a record of reasons is irrelevant to a challenge to the validity of a decision to issue a summons. Jurisdictional error may be established by any admissible evidence relevant for that purpose. And the courts in review proceedings have consistently had regard to the reasons recorded by the examiner under s 28(1A), and to the statement of facts and the legal submissions on which the reasons are based. (citations omitted)
Evidence on the Voir Dire re Ground 1
[21] Ibid at [124].
In the present case, counsel for the accused tendered a copy of the Reasons document. The Examiner had completed a pro forma document stating that he was satisfied that it was reasonable to issue the summons to SC. He had regard to a Facts and Circumstances document dated 12 October 2009, and a Legal Submissions document of the same date.
The Facts and Circumstances document was redacted, and in parts heavily redacted. Counsel for the accused objected to the tender of the document on the basis that it was incomprehensible. I admitted the Facts and Circumstances document and the Legal Submissions document.
The Facts and Circumstances document referred to the approval, by the Board, of a joint agency investigation into the illegal activities of a High Risk Crime Group (HRCG) controlled by members of an OMCG.[22] The document outlined the nature of the crimes the HRCG was said to have engaged in, and apparently made reference to the identity of a number of members of the HRCG whose names had however been redacted. The accused was described as the brother of one FC. Although the document, as redacted, does not specifically disclose the nature of the relationship between FC and the HRCG, I infer that there is a relationship.
[22] Outlaw Motorcycle Gang.
The document also set out the purpose of examining the accused, and referred to the expectation that he would be able to provide specific information relating to certain persons, or organisations, the identities of which had been redacted, and their involvement in criminal activity, and the income generated by such illegal activity.
The Legal Submissions document referred to the accused having links to OMCG members who were the subject of the special investigations, and to the suspicion that the accused possessed knowledge of events relating to relevant criminal matters.
The prosecution proposed to call the Examiner to give evidence but ultimately, by consent, tendered a statement of the Examiner, on the basis that the statement contained the evidence the Examiner would have given under oath. The statement was signed but not sworn.
That statement elaborated to some extent, the basis of the Examiner’s Reasons. He said that the information available to him identified a number of persons believed to be involved in illegal activities with a person known to the accused. Further, he said, information available suggested that the accused was involved in activities associated with the illegal activities, or may have knowledge of such activities. He said that he was unable to detail the information made available to him on the basis that such information would be the subject of a Public Interest Immunity claim.
Further, the Examiner said that after consideration of all the information provided to him in the Facts and Circumstances document, he concluded it was reasonable that the accused be examined regarding his knowledge of the group of people under investigation. He said that it was his practice to draft Reasons which did not include detailed factual material in order to enable the disclosure of the Reasons without releasing the full facts and circumstances.
Conclusion re Ground 1
The present circumstances can be distinguished from the situation which existed in R v LB. Here, while the Reasons document is expressed in a formulaic way, the Facts and Circumstances document and Legal Submissions document were received into evidence, albeit in redacted form. There is sufficient information to conclude that the Examiner was satisfied that it was reasonable to issue the Summons. The statement of the Examiner, received in lieu of his evidence, fortifies that view. There is sufficient material upon which a determination may be made that the summons was validly issued. I dismiss Ground 1 of the application.
Ground 3
The accused asserts that the ACC disclosed material relating to the Examination to the CDPP, in breach of a non-publication order. Doing so, it is said, constituted an abuse of process, and means that the proceedings should be stayed.
As to whether a breach by the ACC justifies the granting of a stay, the concept of abuse of process extends to a use of the court’s processes in a way which is inconsistent with two fundamental policy requirements which arise in criminal proceedings. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.[23]
[23] Williams v Spautz (1992) 174 CLR 509 at [20].
A stay can be granted in a case even though a trial may be fair. In other words, it is a sufficient, but not a necessary, basis for the granting of a permanent stay that any trial which is to be conducted, will be unfair.[24] The residual issue is whether the grant of such relief is necessary to protect an erosion of public confidence in the administration of justice in the court.[25]
[24] R v Seller R v McCarthy [2012] NSWSC 934 at [212].
[25] Ibid at [213].
The question is whether “the criminal is to go free because the official has blundered”.[26]
[26] R v Seller R v McCarthy [2012] NSWSC 934 at [214], citing Moti v The Queen [2011] HCA 50, per Heydon J; and see Cardozo J in People v Defore 150 NE 585 at 589 (NYCA 1926): The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side, is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office.
As Garling J observed:[27]
In the second category of cases, where the court’s sense of justice and propriety is offended, and if public confidence in the criminal justice system would be undermined, and the trial itself, by the use of the court and its procedures, would bring the administration of justice into dispute, or if oppression and injustice would be the consequence of the trial being conducted as proposed, a court may order a permanent stay of the trial.
[27] R v Seller R v McCarthy [2012] NSWSC 934 at [220].
In the present case, the ACC Examiner, in the usual course, had made directions pursuant to s 25A(9) of the Act in the following terms:
I direct that the evidence given by SC, the contents of the documents and the description of anything produced to the Commission during this Examination, any information that might enable SC be identified and the fact that SC has given evidence at this Examination, shall not be published except to the Chief Executive Officer, the Examiners and members of staff of the Commission and any prosecution authority and the staff of such an authority for any matter for which they are responsible arising from this investigation and any court of competent jurisdiction, having jurisdiction in relation to any matters involving any legal proceedings arising out of this investigation. The Commission’s Chief Executive Officer or his delegate may vary or revoke this direction in writing but must not do so if it might prejudice the safety or reputation of the person or prejudice the fair trial of a person who has been or maybe charged with an offence. The publication, contravention of this direction is an offence punishable under the provisions of the Australian Crime Commission Act. Now Mr C the effect of that direction is that you are not at liberty to speak to anybody about the fact that you have been summoned to appear before the Commission nor are you at liberty to tell anybody about what has transpired whilst you have been attending this Examination. However my directions do not stop you and your legal representatives from speaking together about matters so that you can give instructions to your lawyers and get advice from your lawyers in respect of any of these matters. (my emphasis)
At the time of filing the present application such directions remained in force. It was submitted on behalf of the accused that there was therefore an express prohibition on any of the proposed evidence, sought to be relied on by the DPP, being disclosed to third parties save and except prosecuting authorities. Counsel for the accused submitted that in the usual course variations are made to such directions to accommodate disclosure to the Court, counsel for the accused, legal advisors and the like. It was submitted that here that did not occur in a way that permitted relevant disclosure, and that accordingly, the ACC had committed offences by disclosing the information to enable the present charges to be prosecuted.
It is common ground that on 13 December 2012 the National Manager (Legal Service), of the ACC, who was a person authorised under s 59A of the Act, acting pursuant to s25A(10) of the Act, varied the s 25A(9) direction in the following manner:
1The evidence given by the witness, the contents of any documents or things produced to the Examiner and any information that might enable the witness to be identified or the fact that the Witness has given evidence to the Examiner (the information).
2Subject to paragraph 3, the information set out in paragraph 1 above may only be published:
(a)     to the Chief Executive Officer, Examiners and specified members of staff of the ACC
(b)     the following persons (and staff) in connection with any prosecution of the witness under the ACC Act not arising out of the examination of the witness or any related proceedings (the prosecution) for use in connection with the prosecution only:
(i)Commonwealth Director of Public Prosecutions (and lawyers engaged);
(ii)     any judicial officer or Court hearing the prosecution;
(iii)to any person giving evidence in the prosecution; and
(iv)to the witness and his legal representatives.
(c)     to the appropriate prosecution body for consideration of the commencement of confiscation proceedings against the witness or any other person.
I note that, pursuant to s 25(11) of the Act:
The CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
There is no information as to the basis upon which the author of the variation could have been satisfied that the variation would not prejudice the safety or reputation of the accused or prejudice his fair trial, although that issue was not agitated upon the voir dire.
Counsel for the accused submitted that while such a variation could be made prospectively, it could not be made retrospectively in order to cure any criminal offending by the ACC that had occurred by virtue of disclosure of information before the variation to the directions. Counsel submitted that the breach by the ACC was sufficient to ground a stay of the present proceedings, although he conceded that a stay is a remedy of last resort, and that the breach might be dealt with by exclusion or partial exclusion of the evidence improperly disclosed.
In R v Seller R v McCarthy, which involved an ACC investigation relating to Project Wickenby, directions had been made restricting dissemination of material, in the following terms:[28]
I am going to give a non-publication direction in relation to the evidence that you have given on every occasion that you have been before the Commission including the last two days, the 12th and 13th of September. The direction I give is under subsection 9 of s 25A of the Australian Crime Commission Act. I direct that the evidence given by Patrick David McCarthy, the contents of the document, and the description of any things produced to the Commission during this examination, any information that might enable the witness to be identified and the fact that he has given evidence at this examination shall not be published except to the Chief Executive Officer, the Examiners and members of staff of this Commission. Members of staff of the Commission includes the head of the special investigation under which you have been examined. ... and also the Australian Taxation Office for any matter within its jurisdiction arising from this investigation.
[28] Ibid at [43].
A briefing paper was provided by the ACC to the CDPP which made reference to McCarthy’s evidence, his financial capacity to make a defence to the charges, and inconsistencies between his evidence on examination and documentary versions of the scheme in which he was said to be involved. The briefing paper concluded with a list of recommended charges.
In breach of the non-disclosure directions there was a dissemination of various material, including transcripts, to the CDPP.
A number of variations to the directions were made pursuant to s 25A(10) of the Act. Then, as the Court observed:[29]
[29] Ibid at [51].
The final variation was made on 6 March 2012 by Ms Jacqueline Thompson, the Acting National Manager of Legal Services of the Crime Commission. She was also a delegate of the Chief Executive Officer of the Crime Commission. She varied all of the previous directions which had been given by the Examiner including all previous variations, so as to authorise publication in the following way:
"Subject to paragraph 5, the information ... , may only be published to:
(a)    the Chief Executive Officer, Examiners and members of the staff of the ACC (and lawyers engaged) and
(b)   the following agencies (and staff thereof and lawyers engaged) namely AFP, ATO, ASIC and AUSTRAC;
(c)    any prosecution authority (and staff thereof and lawyers engaged), any court (and staff thereof), and any legal representative of the witness for use in connection with any criminal proceedings brought against the witness.
4.
...
5.     Publication of the information and edited information is subject to the following:
(a) the restrictions on use in sub-section 30(5) of the ACC Act;
(b)     It may not be publicly released; and
(c)     it may not be considered as part of any proposed adverse administrative action without prior consultation with the ACC." (Emphasis added)
It is observed that the final variation was given after the arraignment of Mr McCarthy and shortly prior to the scheduled commencement of his trial. By this time, all of the distributions of information that were relied upon by the applicants in this application, had taken place.

As Garling J noted:[30]
Because he was requested so to do by counsel assisting, the Examiner made a further formal order reflecting that which he had earlier given which recorded that Mr McCarthy had made a claim against self-incrimination and he had been ordered pursuant to s 30(5) of the ACC Act to answer all questions posed to him during this examination.
[30] Ibid at [41].
Garling J summarised the issues covered during the Examination of the accused McCarthy, which had in turn, been disclosed to the CDPP, and concluded:[31]
These were matters about which Mr McCarthy had a right to silence and which engaged his privilege against self-incrimination generally, and also in respect of the specific charge which he now faces. As well, these are matters which may be relevant to any defence which he advances at trial.[32]
[31] Ibid at [61].
[32] A similar observation was made in relation to the examination of the accused Seller.
Garling J ordered a stay of proceedings because of the breach. The conclusion reached by Garling J rested in large part on the question of the right to silence and the privilege against self incrimination enjoyed by the accused. As Garling J emphasised:[33]
[The right to silence] is a right which:
… derives from the privilege against self-incrimination. That privilege is one of the bulwarks of liberty. History, and not only the history of totalitarian societies, shows that all too frequently those who have a right to obtain an answer soon believe that they have a right to the answer that they believe should be forthcoming. Because they hold that belief, often they do not hesitate to use physical and psychological means to obtain the answer they want. The privilege against self-incrimination helps to avoid this socially undesirable consequence. …
The privilege exists to protect the citizen against official oppression.
The privilege, unless abrogated or modified by statute, protects a witness not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of evidence of an incriminating character:[34] (citations omitted)
[33] R v Seller R v McCarthy [2012] NWSSC 934 at [148] & [151].
[34] Ibid at [151], citing Sorby J at 310 per Mason, Wilson and Dawson JJ.
Garling J summarised the effect of the Act upon the privilege against self incrimination by saying:[35]
[35] R v Seller R v McCarthy [2012] NSWSC 934 at [203].
From all of the authorities to which I have made reference, but in particular the cases of OK and CB, I draw the following conclusions:
(a)the privilege against self-incrimination is an entrenched common law right which is deeply ingrained in the law;
(b) section 30 of the ACC Act abrogates that common law privilege;
(c)sections 30(4) and 30(5) of the ACC Act provide a limited compensation by retaining a protection against direct use of the evidence (or documents) obtained by compulsory process;
(d)section 25A of the ACC Act in general, and s 25A(9) in particular, protects against derivative use of the evidence (or documents) obtained by compulsory process where that derivative use might prejudice the fair trial of a person who may be charged with an offence;
(e)interference with justice by way of the prejudicing of a fair trial must be a practical, rather than a theoretical, reality;
(f)there is no practical reality that the course of justice and a fair trial would be interfered with, by reason only of the witness being required to answer questions, including disclosure of their defence, but only so long as an appropriate direction is in force under s 25A(9) which preserves the confidentiality of the examination; and
(g)the right to a fair trial will be compromised if information relevant to a person’s defence in any form, including derivative information, has been, or there was a real risk that it would be, communicated to prosecution authorities.
Conclusion re Ground 3
Much of Garling J’s consideration turned on the issue of the accused in R v Seller R v McCarthy having disclosed their respective defences to substantive charges. He said that the Act clearly prohibits the direct usage of compulsorily obtained evidence, but does not explicitly prohibit derivative[36] or indirect usage, other than by the making of an order under s 25A(9) of the Act, which itself either entirely prohibits publication or else prohibits publication to the CDPP.[37]
[36] That is, evidence which is obtained from other sources in consequence of answers given by the witness in his examination. See Hamilton v Oades [1989] HCA 21, per Mason CJ at [16].
[37] R v Seller R v McCarthy [2012] NSWSC 934 at [240].
Garling J held that disclosure of the transcript of the Examinations by the ACC to the CDPP must have prejudiced, or else have been highly likely to have prejudiced, a fair trial. The only reason for supplying the transcripts to the CDPP was to enable their derivative or indirect use at trial. Otherwise, it was entirely unnecessary for transcripts to be passed on.[38]
[38] Ibid at [246].
Garling J concluded that the dissemination of material by the ACC to the CDPP was likely to impact adversely on a fair trial, and was not authorised by the Act. He said that he was satisfied that dissemination of the transcript of the Examinations, and any documents identified, was wrong because the CEO’s delegate’s direction of December 2007 was not authorised by the Act or the authorities.[39]
[39] Ibid at [252].
Garling J concluded:[40]
But, are these events, and the conclusions which I have drawn from them, sufficient to amount to an abuse of the court’s process in the sense of a trial bringing the administration of justice into disrepute, or else would a failure of the court to grant a stay lead to an erosion of public confidence because the court’s processes may lend themselves to oppression and injustice?
I am satisfied that this is a matter where the Court ought to grant a stay of the proceedings. The Crime Commission issued summonses for the compulsory examination of the applicants, in the express contemplation of specific charges - they were nominated in the summonses. The applicants were entitled to have the contents of their examination, in which they were obliged to forego their privilege against self-incrimination, and which contained evidence relevant to their defence, kept confidential from the prosecution so that their right (to) a fair trial was ensured.
The conduct of the Crime Commission, in conjunction with the CDPP has deprived them of the protection which the law ensured. Any trial would not be fair or in accordance with the adversarial process.
It is not appropriate for this court to permit a trial of their offences in all of the circumstances because it would be an offence to the administration of justice for the applicants to be confronted by prosecution authorities who have had access to material ordinarily caught by the privilege against self-incrimination, but which has been compulsorily obtained.
[40] Ibid at [256]-[259].
It seems to me that the circumstances of the present case are again distinguishable.
The proceedings before this Court constitute “part of any matter involving any legal proceedings arising out of the investigation.” On that basis the release of information to the CDPP in order to enable the prosecution of the accused, was not in contravention of the directions.
The variation was, in my view, unnecessary. It follows that I do not regard the failure to make the variation at an earlier stage as founding a basis upon which the present prosecution could be regarded as vitiated, or should be stayed.
Even if the material was disclosed in breach of the non-publication direction, or the use of the material disclosed by the ACC to the prosecuting authorities did not fall within the definition of the permitted uses, there is no prejudice to a fair trial of the accused on charges of refusing to answer questions. If that be correct, while the conduct was “wrong” in the sense identified by Garling J, it does not, in my view, justify a stay of the proceedings nor exclusion of the evidence of the refusal to answer questions. I dismiss Ground 3 of the application.
I refuse the application for a stay and otherwise dismiss the application.