R v CB; MP v R - [2011] NSWCCA 264

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v CB; MP v R [2011] NSWCCA 264
Hearing dates: 27 July 2011
Decision date: 09 December 2011
Before: McClellan CJ at CL at [1]
Buddin J at [137]
Johnson J at [138]
Decision:
1. The appeal by the Director of Public Prosecutions is upheld.
2.The order granting a permanent stay to CB is quashed and the matter is remitted to the District Court for trial.
3. The appeal by MP is dismissed.

Catchwords: CRIMINAL APPEAL - s5F Criminal Appeal Act 1912 (NSW) - permanent stay granted in District Court in respect of CB but not MP - possibility of contempt referral gives ACC standing - CB examined by ACC after being charged - information obtained in examination was not disclosed - not open for District Court judge to find decision in ACC v OK [2010] FCAFC 61 was plainly wrong - permanent stay not justified - Crown appeal successful - MP appeal dismissed.
Legislation Cited: Australian Crime Commission Act 2002 (Cth)
Criminal Code 1995 (Cth)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995
Cases Cited: A v Boulton [2004] FCA 56; (2004) 204 ALR 598
ABC v Sage [2009] FCA 170;175 FCR 319
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Australian Competition and Consumer Commission v Telstra Corporation Ltd (2009) 176 FCR 203
Australian Crime Commission v OK [2010] FCAFC 61; [2010] 185 FCR 258
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111
CC v Australian Crime Commission [2005] FCA 754
Clough v Leahy (1904) 2 CLR 139
Commissioner of Police v Tanos (1958) 98 CLR 383
Commonwealth Superannuation Scheme Board of Trustees v Kitching (2004) 139 FCR 272
Dupas v The Queen [2010] HCA 20; 267 ALR 1
Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74;178 CLR 447
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Limited [2007] 158 FCR 325
Fleming v White [1981] 2 NSWLR 719
Hamilton v Oades [1989] HCA 21; 166 CLR 486
Hammond v The Commonwealth [1982] HCA 42
Insurance Exchange of Australasia v Dooley (2000) 50 NSWLR 222
Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23
Johns v Australian Securities Commission (1993) 178 CLR 408
Mansfield v Australian Crime Commission [2003] FCA 1059; (2003) 132 FCR 251 is Hak Song Ra v Australian Crime Commission [2004] FCA 416; (2004) 138 FCR 51, Loprete v Australian Crime Commission [2004] FCA 1476
McGuinness v AG of Victoria [1940] HCA 6; 63 CLR 73
Mortimer v Brown [1970] HCA 4; 112 CLR 493
NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456
OK v Australian Crime Commission [2009] FCA 1038; 259 ALR 507
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Latif [1996] 1 WLR 104 and R v Grant [2005] 3 WLR 437
R v MG [2007] NSWCCA 57; 69 NSWLR 20
R v Smith (No 1) [2011] NSWSC 725
Secretary, Department of Social Security v Lowe (1999) 92 FCR 26
Sorby v The Commonwealth [1983] HCA 10; 152 CLR 28
Stoddart v Boulton & Anor [2010] FCAFC 89
The Queen v Edwards [2009] HCA 20; 255 ALR 399
Victoria v Australian Building Construction Employees and Builders Labourers Federation [1982] HCA 31; 152 CLR 25
Walton v Gardiner [1993] HCA 77; 177 CLR 378
X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413
Category: Interlocutory applications
Parties: CB (Respondent)
MP (Appellant)
The Crown (Appellant/Respondent)
Representation: Counsel:
K Chapple SC/D Lee (Cth Crown)
Dr J F Bleechmore/N Steel (Respondent - CB)
B Walker SC/G Thomas (Appellant - MP)
N J Williams SC/M J O'Meara (Australian Crime Commission - applicant for leave to appeal)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Warren McKeon Dickson - Lawyers (Respondent - CB)
Konstan Lawyers (Appellant - MP)

File Number(s): 2009/30770 (CB) 2009/47599 (CB) 2009/60449 (MP)
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-06-30 00:00:00

Before:

Murrell DCJ

File Number(s):

DC 2009/30770
DC 2009/47599

Judgment

McCLELLAN CJ at CL: On 3 June 2009 CB and MP (they have been anonymised to avoid any difficulties) were charged with conspiracy to manufacture a commercial quantity of a border controlled drug (methamphetamine) contrary to subsections 11.5(1) and 305.3(1) of the Criminal Code 1995 (Cth). MP was also charged with an offence of conspiracy to import a commercial quantity of a border controlled precursor (pseudoephedrine) contrary to subsections 11.5(1) and 307.11(1) of the Code.

On 15 September 2009 CB was examined before the Australian Crime Commission ("ACC"). Although a transcript was taken of that examination and is in the possession of CB's representatives it was not placed before the District Court and was not provided to this Court. The Director of Public Prosecutions does not have a copy. His examination was not completed and was adjourned until 18 September 2009. However, in the meantime the trial judge's decision in OK v Australian Crime Commission [2009] FCA 1038; 259 ALR 507 was handed down and as a consequence the examination was terminated.

Both CB and MP have sought a permanent stay of the charges which have been brought against them. A judge of the District Court granted a stay in respect of CB but refused a stay to MP. Her Honour found that in respect of CB the proceedings in the Commission constituted "a serious interference with the administration of justice." Her Honour stated two reasons for this finding:

"First the adversarial nature of the trial has been subverted"

And:

"Second, although there is no proof that material discovered through the examination has been disseminated, the circumstances are such that both the accused and the informed public are likely to be concerned that material has been disseminated, undermining confidence in the independence and impartiality of the criminal justice process."

The trial judge acknowledged that the grant of a stay "is a discretionary remedy" but concluded that this was an "exceptional or extreme case." Her Honour's reasons for that conclusion were summarised and her Honour said:

"I take into account that a central purpose of the examination was to gather information in relation to the charges laid against the accused and his alleged co-conspirators but Mr Ryan, the solicitor for (CB), was assured that the accused would not be questioned about matters directly related to the trial."

Although no relevant order was made her Honour's conclusion amounted to a finding that the ACC had committed a contempt of court but her Honour was of the opinion that there was no utility in referring that matter to the Supreme Court and she declined to do so.

The Director of Public Prosecutions appeals to this Court pursuant to s 5F(3) of the Criminal Appeal Act in respect of the stay granted to CB. MP has also appealed arguing that her Honour erred by not also granting him a stay.

The Director of Public Prosecutions advanced the following grounds of appeal:

Ground 1: Her Honour erred in finding that the application of the accused constituted an "exceptional or extreme case" such that his trial should be stayed permanently.

Ground 2: Her Honour erred in finding that there had been a serious interference with the administration of justice.

Ground 3: Her Honour erred in finding that the adversarial nature of the trial of the accused had been subverted.

Ground 4: Her Honour erred in finding that although, given the evidence of Federal Agent Mohammed Hussain, there was no proof that material discovered through the examination of the accused by the Australian Crime Commission has been disseminated, the circumstances of the examination were such that both the accused and the informed public were likely to be concerned that material has been disseminated, undermining confidence in the independence and impartiality of the criminal justice process, inter alia, by undermining confidence in the impartiality of prosecuting authorities.

Ground 5: Her Honour erred in finding that:

(a) the examination of the accused was initiated and driven by the Australian Federal Police; and

(b) the central purpose of the examination was to gather information in relation to the charges against the accused and his alleged co-conspirators.

Ground 6: Her Honour erred in finding that there was an alleged fraud on power committed by the Australian Crime Commission, through an undertaking given by Ms Joanna Austin, as to the subject matter of the examination and that this amounted to an aggravating circumstance to be taken into account in reaching the conclusion at paragraph [84](2).

Ground 7: Her Honour erred in finding that the circumstances of the examination of the accused amounted to a contempt of court.

Ground 8: Her Honour erred in the interpretation of Hammond v The Commonwealth (1982) 152 CLR 188 and its applicability to the respondent's claim for a permanent stay.

Ground 9: Her Honour erred in finding that the majority decision and its consideration of the provisions of the Australian Crime Commission Act 2002 in Australian Crime Commission v OK (2010) 185 FCR 258 should not be followed.

MP advanced the following grounds of appeal:

Ground 1: Her Honour erred in law in failing to permanently stay the proceedings against the applicant having found "...that a central purpose of the examination was to gather information in relation to the charges laid against the accused and his alleged co-conspirators, including the co-accused. " [Paragraph 91 of the reasons for decision dated 30 June 2011 "the decision"].

Ground 2: Her Honour erred in law in failing to permanently stay the proceedings against the applicant for reason that "...it is not a contempt of court to use a coercive statutory power to obtain evidence that could be obtained through the normal court process, the compulsory examination of the accused in relation to the co-accused cannot, of itself constitute interference with the administration of justice because the accused could be required to give evidence in the trial of the co-accused. " [Paragraph 89 of the decision]; when process is not available as a matter of law to coerce or compel a co-accused to give evidence against another co-accused in a joint trial.

Ground 3: Her Honour erred in law in holding, on the basis of Hak Song Ra v Australian Crime Commission [2004] FCA 416; (2004) 138 FCR 51, or otherwise, that the position of joint accused is the same as that of persons suspected, or persons who might be called as a witness, where there is no extant criminal process against the applicants [Paragraph 90 of the decision].

Ground 4:l Her Honour erred in law in failing to permanently stay the proceedings against the applicant having found "...that there has been a serious interference with the administration of justice" in respect of the joint trial in which the applicant was co-accused with the party subject to coercive interrogation about the charges laid against the co-conspirators including the applicant [Paragraph 98 of the decision].

Ground 5: Her Honour erred in law in failing to permanently stay the proceedings against the applicant for reasons that the adversarial nature of the joint trial of the applicant as co-accused had been subverted and that the applicant and the informed public are likely to be concerned that material has been disseminated, undermining confidence in the independence and impartiality of the criminal justice process in the same way that these reasons were applied to the accused [Paragraph 98 of the decision].

Ground 6: Her Honour erred in law in failing to permanently stay the proceedings against the applicant having found serious interference with the administration of justice, abuse of process and contempt of court in respect of the proceedings in which the applicant is co-accused with the party subject to the coercive examination when the central purpose of the examination was to gather information in relation to the charges laid against the accused including the applicant and there is a real risk of dissemination and or derivative use of that information for advantage by (or in) the prosecution of and without disclosure to the applicant.

Ground 7: Her Honour erred in law in failing to permanently stay the proceedings against the applicant (rather than just the accused), in light of the finding that there has been serious interference with the administration of justice and contempt of the same court exercising the same Commonwealth jurisdiction in respect of joint criminal proceedings, in breach of the applicant's right to a fair trial by jury within the meaning of s 80 of the Constitution

I am of the opinion that the appeal by the Director of Public Prosecutions must succeed but that of MP must fail.

The standing of the Australian Crime Commission

It seems that the trial judge granted the ACC leave to intervene and become a party to the proceedings from the first day. However, the entitlement of the ACC to apply for that leave does not appear to have been considered.

Subsequently on 28 March 2011, by which time no doubt the basis for the application for the respective stays had been made plain, counsel appeared for the ACC and was granted leave to appear with no objection from any party. The reason for the ACC to have engaged counsel to appear was no doubt because of the notice which had been given to it indicating that orders would be sought against the ACC alleging that it had, by conducting the examination, committed a contempt. The primary judge confirmed that no party had objected to the ACC appearing to protect its interests in respect of the alleged contempt. Thereafter counsel for the ACC tendered evidence and otherwise participated in the hearing.

Before this Court the ACC submitted that as it was a party to the proceedings below it is a "party" for the purpose of s 5F(3) of the Criminal Appeal Act 1912 (NSW) and may appeal to this Court. This, of course, presupposes that there is a relevant interlocutory judgment or order (s 5F(3)) in respect of which the ACC may appeal.

There can be no doubt that the DPP as the prosecutor of both CB and MP is entitled to appeal the order for a stay in respect of CB and defend the appeal by MP. The primary judge considered the allegation that the ACC was in contempt, albeit briefly, but decided to dismiss the application to have that matter referred to this Court. In that event there could not be any relevant interlocutory judgment or order against which the ACC may appeal.

The motions which were filed do not include an application that the ACC be dealt with for contempt although it is apparent that both the parties and her Honour acted upon the basis that such an application had been made. That being the case the appeal by MP raised again the possibility of the ACC being referred for contempt. For that reason at least as a respondent it is properly a party to this appeal. This is sufficient to dispose of the issue concerning the standing of the ACC. However, I record below the submission made by the ACC.

The ACC submitted there is no principle that only a party against whom a judgment or order is made may appeal from that judgment or order. A party may appeal against a judgment or order which, while not being a judgment or order made against him or her, affects the party's interests. The relevant principles were summarised by Handley JA (Giles JA agreeing) in Insurance Exchange of Australasia v Dooley (2000) 50 NSWLR 222 at 228, [24] - [26] as follows:

[24] A litigant who is a party to proceedings, and bound by a judgment which is adverse to his interests must, in principle, have the necessary standing to appeal. In Attorney General for Australia v The Queen [1957] AC 288 the Attorney General, as an intervener in the proceedings below, was permitted to appeal from the decision of the High Court.

[25] It is also well established that a defendant who is prejudiced by a judgment against another defendant may appeal and secure its reversal or variation see Hanson v Wearmouth Coal Co [1939] 3 All ER 47 CA, 55, Unsworth v Commissioner for Railways (1958) 101 CLR 73, 88, 94, 95 (where the appellant obtained an order increasing the amount of the judgment entered against another defendant), Castellan v Electric Power Transmission Pty Limited (1967) 69 SR (NSW) 159, 175, 186-7, 188, Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Limited (1986) 160 CLR 626, 670-2 per Brennan J and 679-80 per Deane J, James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53, 63 per Gaudron and Gummow JJ, Kelly v Newcastle Protective Coating Pty Ltd [1973] 2 NSWLR 45, 52-3, and Taren Point Bowling and Recreation Club v Shapter [1982] 1 NSWLR 219, 223-4.

[26] Similarly in Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd (1974) 132 CLR 1 the High Court allowed an appeal by a third party against a judgment for the plaintiff."

The ACC submitted that even though the order of the primary judge of 30 June 2011 permanently staying the respondent's trial was not an order or judgment made against the ACC, it prejudiced the ACC in at least two ways.

First, it was submitted that it was based on what, in substance, was a finding that the ACC had engaged in a contempt of court. This is so notwithstanding that the primary judge did not refer "the contempt of Court to the Supreme Court for determination" because she took the view that there was "no utility" in doing so. Accordingly, the ACC is prejudiced, in at least a reputational sense, by findings of the primary judge that it committed a contempt of court, even though her Honour refused relief in relation to that contempt.

Second, the ACC was said to be prejudiced because, by reason of the decision of the primary judge not to follow the decision of the Full Court of the Federal Court in Australian Crime Commission v OK [2010] FCAFC 61; [2010] 185 FCR 258, the ACC is faced with conflicting judicial decisions as to the construction of the Australian Crime Commission Act 2002 (Cth) (ACC Act). The ACC has an overriding obligation to implement the ACC Act according to the law as declared by the judicial arm of government exercising the judicial power of the Commonwealth under Chapter III of the Constitution: see Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Limited [2007] 158 FCR 325 at [3]-[6] per Allsop J, at [41]-[48] per Edmonds J (Stone J agreeing with both at [1]).

It was submitted that the position of regulators and their obligation to apply the law as declared by the judicial branch of government has led to the development of a jurisdiction to allow appeals where the order or judgment of the court below is not erroneous, but the reasoning on which it is based is, which jurisdiction is exercised by varying the orders of the court below to include an appropriate declaration: see Baxter Healthcare Pty Limited v Comptroller General of Customs (1997) 72 FCR 467 at 483 per Burchett J, 491 per Moore J and 499 per Merkel J; Secretary, Department of Social Security v Lowe (1999) 92 FCR 26 at 34, per Burchett, Kiefel and Hely JJ; Commonwealth Superannuation Scheme Board of Trustees v Kitching (2004) 139 FCR 272 (Kitching) at 274, [3] per RD Nicholson, Jacobson and Bennett JJ and Australian Competition and Consumer Commission v Telstra Corporation Ltd (2009) 176 FCR 203 at 209, 210 and at 217, 218, per Ryan, Jacobson and Foster JJ.

The jurisdiction developed was explained by the Full Court in Kitching at 274, as follows:

[3] Although ordinarily a right of appeal lies only in respect of a Court's orders and not its reasons, there is an exception to this rule. As a Full Court said in Secretary Department of Social Security v Lowe (1999) 92 FCR 26 at [16], an order read in the light of the reasons justifying it may leave open to be implemented a conclusion which a Full Court holds to be erroneous. In such a case the Court has power on appeal to vary the order made below by the addition of an appropriate declaration, see Baxter Healthcare Pty Limited v Comptroller General of Customs (1997) 72 FCR 467 at 483.

It was further submitted that the primary judge's finding that the ACC engaged in a contempt of court has been sought to be sustained in this Court. This leads to the application of the principle stated by Dixon CJ and Webb J in Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 - 396:

"... it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard ... The general principle has been restated in this court .. It is hardly necessary to add that its application to proceedings in the established courts is a matter of course"

Finally it was submitted that the principle stated by Dixon CJ and Webb J in Commissioner of Police v Tanos is engaged where the relevant prejudicial effect is a prejudicial effect on reputation: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 577 - 578 per Mason CJ, Dawson, Toohey and Gaudron JJ and at 592 per Brennan J, Johns v Australian Securities Commission (1993) 178 CLR 408 at 437 per Dawson J, at 456 - 457 per Toohey J, at 470 - 471 per McHugh J.

The argument developed by the ACC has force although it does not in terms address the question in this case where the right of appeal is both provided and confined by the Criminal Appeal Act. Because there is no interlocutory judgment or order affecting the ACC an appeal pursuant to s 5F(3) of the Act may not be available. However, as I have indicated I do not believe that it is necessary to resolve the issue of whether they are entitled to appeal to this Court.

The evidence of Mr Ryan and Ms Austin

Both CB and MP together with others were charged with the relevant offences in June 2009. Although the ACC had previously commenced inquiries CB was only summonsed to appear before an Examiner at a hearing which was fixed for 15 September 2009. The summons described his obligation to give evidence in the following terms:

"... to give evidence of federally relevant criminal activity involving the importation and manufacture of amphetamine type stimulants and the possession and supply of substances for that manufacture; and noting that:

i. persons involved in the investigation of you in relation to current charges on foot against you will not be permitted to attend; and

ii. a non publication order will prevent information being published to those persons and to the Office of the Commonwealth Director of Public Prosecutions;

..."

CB attended and was questioned by counsel assisting the Commission. His examination was not completed on 15 September and was to be continued on 18 September. The delivery of the trial judgment in OK intervened and the examination was terminated.

CB and his advisers have a copy of the transcript of the examination held on 15 September. The DPP does not have a copy of the transcript.

Counsel for CB did not tender the transcript before the primary judge. Although counsel for MP sought a copy that request was not pursued. Accordingly, the evidence of the questions and answers during the examination was confined to evidence given by witnesses who gave evidence before the primary judge. This was comprised of both affidavit and viva voce evidence.

Before the examination at the ACC there was a discussion between the solicitor for CB, Mr Ryan and counsel assisting the ACC, Ms Austin. Mr Ryan gave evidence before the primary judge by affidavit and was cross examined. In his affidavit he says that CB was served with his summons by Mohammad Hussain who he knew to be an Australian Federal Police Officer. Because of his concern that an AFP officer was connected with the ACC he rang Ms Austin. He said that he took the following steps:

"Accordingly, I telephoned the ACC to express my concerns and there spoke to Joanna Austin, Counsel assisting. The following conversation took place in words to the following effect:

Ryan: 'I am the solicitor acting on behalf of CB who has received a summons to appear at the ACC on 15 September 2009. I am concerned that Hussain is an AFP officer. Will he be in attendance at the hearing?'

Austin: 'I am unaware of any person serving the Summons being involved in the investigation of your client. I will make checks but I don't believe there is a concern here. In relation to Mr Hussain, he is unable to liaise with colleagues with the AFP and as he is an officer seconded to the ACC he has had and will have little involvement or contact with the AFP. In any even, CB will not be examined in relation to matters that are the subject of charges presently on foot.'

Prior to the commencement of the examination at the ACC on 15 September 2009 I received instructions from the accused to the effect that he had discovered a statement of Hussain in the brief of evidence which indicated that Hussain was directly involved in the investigation of the alleged conspiracy with which the accused stood charged. At the ACC before commencement of the examination I had a conversation with Joanna Austin, Counsel assisting in the presence of CB when the following conversation took place in words to the effect:

Ryan: 'I have been advised that Hussain has been involved in the investigation of the conspiracy charges against CB and my client has found a witness statement from him in the police brief.'

Austin: 'I will raise the matter with Mr Hannaford who is the examiner but his presence should not be of a concern as the charges against CB are not the purpose of the examination and in any event Hussain will not be able to liaise with colleagues from the AFP.'

Shortly thereafter I had a further conversation with Austin in the presence of Hussain when she said to me words to the effect:

Austin: 'I have told the examiner and we are satisfied that Hussain's presence will pose no problem to the examination. CB will be able to raise a general objection to all questions asked. We are aware that there are current charges against CB but he will not be asked questions that directly relate to his trial. There will be questions pertaining to his knowledge regarding the chemical compositions and methods of manufacture of illicit drugs. We have a chemist who will be present at the examination to assist in asking questions concerning drug manufacture.'

There was several breaks during the examination and I particularly recall one such break when Counsel assisting, in the presence of Hussain, said to me words to the following effect:

Austin: 'I believe CB is withholding information and he is doing himself a disservice.'

Hussain: 'The AFP have got a strong case against CB and I don't believe what he is saying.'

Ms Austin gave viva voce evidence before the primary judge. She was asked in chief whether she recalled the conversation with Mr Ryan. She responded "I recall the conversation, I do not recall the content of the conversation." She said that she made no note of the conversation.

Later she was asked whether at any stage she had indicated to anybody "that there would be questions at the examination relating to CB's knowledge of chemical composition and manufacture of illicit drugs." She responded by saying she believed this had occurred but could not remember to whom she had said it.

She was subsequently asked whether the questions asked of CB "touched on the charges against him?" and she answered "yes."

Ms Austin was cross-examined by counsel for CB. She again confirmed that she had no recollection of the content of conversations with Mr Ryan. However, later when pressed by counsel she said that she remembered in "general terms, and general terms only, and I've not been drawn on exactly - I can't be drawn on what I exactly said, but during conversation with Mr Ryan, I believe, yes, that I said that questions would be posed of the witness in relation to the matters before the Court."

Ms Austin was asked about whether she had any inhibition in questioning CB about matters relating to the pending criminal charges. She said that because of the conditions on the summons excluding persons involved in the current charges from attending and with the knowledge that a non-publication order would be made she had no inhibition. This answer was as I understand the position consistent with the practice of the Commission in relation to examinations, at least before publication of the trial judgment in OK.

Mr Ryan was also cross-examined before the primary judge. With respect to Mr Hussain he confirmed that there had been a discussion before the ACC hearing about his presence at the ACC hearing. He agreed that he was told that he had been authorised by the ACC to be present. He was then asked about his conversation with Ms Austin concerning the matters to be discussed during the hearing. The following exchange occurred:

"Q: That is really a rolled up version of the first matter I wanted to raise with you just on that paragraph. The second is the last sentence that you have written there that your recollection was that she said words to this effect, in relation to prospective matters at the examination. You've indicated that your recollection is that she said 'in any event' or words to this effect, 'in any event [CB] will not be examined in relation to matters that are the subject of charges presently on foot.' Now again I can't give you the exact terms of what was said but could I suggest to you that she said words to the effect that he would be examined on that material, that is I'm suggesting, the opposite of what you've said in that sentence?

A: I remember that attached to the summons was a document relating to chemical compositions and synthetic drugs, so I was concerned as to the topic of the examination and I understood from my discussion with Ms Austin and I had more than one discussion with her, that what was to be discussed at the ACC was at least primarily to do with that.

HER HONOUR

Q: With what?

A: With my client's understanding of synthetic drugs and chemical compositions. Now, I've got in my affidavit of Ms Austin saying that he will not be examined in relation to matters that are the subject of charges presently on foot. I've got a memory of Ms Austin saying that. When she said it it was either on the telephone or on the day - on the morning of the examination itself. My memory fails me to say exactly when, but prior to the examination starting it was - it was said to me that that - his current matter will not be traversed in that way. I had an understanding that that was to be the case.

CROWN PROSECUTOR

Q: If I may I'll just come to the conversations that you've referred to in paragraph 7 onwards about the day of the actual hearing, if I may in a moment.

A: Yes.

Q: Do I follow that what you're saying in relation to the paragraph 6 conversation we're just looking at now, Ms Austin's words?

A: Yes.

Q: Or the words that you recall that are to that effect? Do I follow that you are not sure whether she said that on the phone at all that topic?

A: Yes, I'm not sure if she said that on the phone. I'm recollecting today that it was said before the actual examination at some stage. Whether it was on the phone or whether it was actually at the examination or on the day of the examination on 15 September or not I can't say for certain today.

Q: Perhaps I should move to that. Paragraph 7, I think, is the second convenient reference to that topic, that is the purpose or the scope of the examination and anything Ms Austin said about it. Do you see the reference she makes in your affidavit that again you've referred to her saying the charges against [CB] are not the purpose of the examination, or words to that effect? Again what I'd like to suggest to you is that at the hearing on 15 September 2009 whatever she said about that topic, whatever words were used, the meaning of the words was in fact the opposite of what you've attributed to her? By that I mean she said that the examination would involve examination in relation to the charge or charges that were against [CB] at that stage?

A: I understood it to be referred to me as not being part of her involvement or part of the examination that day. I remember specifically her expressing the main concern that [CB] had and I had was that there was an AFP officer present that day. That had been relayed to me that morning and confirmed by [CB] that that particular officer was actually involved in the investigation itself. I was anxious to get across to Ms Austin that particular concern that morning. I received - she - and as it's said in my affidavit I've related those concerns to her. On the summons I was - there was someone present in relation to the chemical compositions and the synthetic drugs aspect of it, so I remember that was at least to be the primary purpose. I understood that there were to be questions asked, but I also understood that in terms of his current charges he wouldn't be expected to raise his defence. Now, it wasn't said expressly, as I understand, in terms of his raising his defence by Ms Austin, but in a general sense I understood he would not be asked concerning the current charges and my memory is, the reason why I understand that today is because she said it to me."

And later:

"Q: That's right. That Ms Austin told you, Mr Ryan?

A: I believe that she said that it wouldn't touch on the current charges. I did go there with no expectation that that wouldn't happen, the advice I had from senior counsel at the time was what led me to believe that I had no other option other than what I would regard as a resigned approach. It was to be somewhat of an observer of the proceedings and do my best in the circumstances. That was - so what I'm saying is I believe that Ms Austin told me that they wouldn't touch on it. When they did touch on it it didn't necessarily surprise me.

Q: What I'm trying to get at I suppose Mr Ryan is this, do you allow for the fact that you may be wrong in your memory today about the suggestions I think we have three of them if I can refer you to paragraph 6, paragraph 7 and paragraph 8 where you suggested Ms Austin has said that there wouldn't be questions touching on--

A: I have a firm belief that I'm not wrong and yes that's as high as I can put it.

Q: Are you able to explain why you have that firm belief, on what basis, or?

A: Well I've never been to the ACC before so it was the first time that I dealt with that particular body and I believe that my memory is accurate of the conversations that I had with Ms Austin. True it is that I didn't make any actual notes or start to draft an affidavit until March the next year but there were discussions had regarding what had occurred with [CB] and others in my legal team which confirmed in my mind what had occurred at the proceedings. I mean I believe my memory is accurate. I remember thinking at the time that the examination commenced in questions that were asked pertaining to the charges themselves. I remember thinking at the time this is not going to plan and that was on my belief that I was told that those topics were not going to be covered. So I never received any written documents from the ACC as to what occurred. I was told in conferences what I could expect. When Ms Austin was speaking with me I did my best to listen very carefully.

CROWN PROSECUTOR

Q: Can I just get this clear though, that if what you were telling me earlier was correct, that is that you're now unsure, do I follow that the reference that you make in paragraph 6 to her suggestions that there would be no examination in relation to matters that are subject of charges, that your memory is not as good as you believe it is?

A: Yes I, I, in terms of telephone conversation that's attributed, words to the effect in paragraph 6 I can see that I may be mistaken in relation to what Ms Austin, what I said Ms Austin said to me about current charges.

HER HONOUR

Q: But I'm just not clear. I thought that earlier you said that you can't be sure what was said to you on the phone and what you were uncertain about was when it was said there was no level of uncertainty about whether it was said. What is the position in that regard?

A: I know it was said but I don't know when it was said. So what I'm conceding is I suppose the same thing could be said in relation to paragraph 7, I'm just not sure when it occurred but I'm sure it occurred.

CROWN PROSECUTOR

Q: But did you just tell us a moment ago that you went there do we follow, if there was no conversation with Ms Austin about the subject matter of the examination, the prospected examination on the phone, you went there with your advice from senior counsel expecting that there would be questions to that effect or could be perhaps is the proper way to describe it?

A: That's fair to say. I didn't - I didn't raise with counsel concerns that he'd be asked regarding - that I'd been told by Ms Austin that there'd be questions regarding current charges, so I think it's more likely that it occurred on the morning.

Q: What I suggest to you is that really the topic itself, that is you're suggesting your memory that she said there wouldn't be any topic relating to current charges?

A: Yes.

Q: And my suggestion to you that she said effectively the opposite. You're suggesting that you're certain of that in your mind now or what level of certainty could you put it at in a percentage?

A: Well I remember as I've said I'm certain because if you want to put a level on it, I'm certain because I remember thinking at the time they're touching upon the current charges that this is not what I anticipated would occur and that was at the result of what was said by Ms Austin to me prior. So I'm certain, I mean I can't put a level on it, I can say I'm certain."

It is apparent that Mr Ryan is unsure as to whether the issue of concern was discussed before the examination and on the telephone or at the ACC premises just before the hearing. Although in this portion of his evidence he expressed concern about the possibility of questions being asked relating to the charges his client was facing he crystallised those concerns in his later evidence making plain that the significant concern was that CB should not be asked questions which required him to disclose his defence to the charges. The following exchange occurred:

"Q: Secondly, you were concerned about the representations that had been made to you by counsel assisting the commission concerning the subject matter of the examination not relating to the criminal proceedings that were pending against your client?

A: No, when I expressed those concerns what was in my mind at the time primary was--

CROWN PROSECUTOR: I object to this your Honour, with greatest of respect to Mr Ryan.

HER HONOUR

Q: Yes, it's not what was in your mind, it's what you actually discussed, what you actually said.

A: What I said to the commission at the time was I was concerned about disclosing portions of the defence and the investigating authorities getting access to that, the investigating authorities in his current matter getting access to that portion of his evidence which disclosed, as I said, portions of his defence. That was my concern" (emphasis added).

This response to my mind is plausible. It is hard to imagine that if CB was to be examined about matters relating to illegal drugs, given that he had been charged with offences of that nature, his examination would not raise matters relevant to the charges. Whether he would be asked questions that would require him to disclose his defence was another matter. Without the transcript it is not possible to determine with any confidence what occurred at the examination. However, there is no evidence that he was asked questions or gave answers during the examination which related to matters concerning his defence to the charge.

The trial judge's finding regarding the evidence of Mr Ryan

The trial judge concluded that there were inconsistencies between the evidence of Mr Ryan and Ms Austin which were difficult to reconcile. Her Honour resolved those difficulties after having regard to two matters. Firstly, her Honour accepted that attending the ACC as he did for the first time and the circumstances which became a "most unpleasant episode in his professional life" Mr Ryan's memory would be "reasonably good."

Secondly, her Honour considered the demeanour of Ms Austin and expressed the following conclusion:

"Ms Austin gave evidence for the respondent. At times, her evidence was delivered in an overly confident fashion. On many occasions, questions concerning important matters were followed by long pauses. Counsel for the respondent cross-examined Mr Ryan to the effect that his evidence of conversations with Ms Austin was wrong in critical respects. However, when Ms Austin gave evidence about the same conversations, she initially disavowed a recollection of their terms. In my view, in so far as Ms Austin's evidence differed from that of Mr Ryan, it was unreliable and did not detract from the weight to be attached to Mr Ryan's evidence."

The critical finding in her Honour's reasons is that contrary to the assertion by Ms Austin that she had forewarned Mr Ryan that CB would be asked questions about the charges her Honour accepted "Mr Ryan's evidence that Ms Austin did not do so." Instead her Honour found that "prior to the examination, Ms Austin reassured Mr Ryan that the accused would not be questioned about matters directly related to the trial."

There are difficulties with her Honour's finding. Firstly Mr Ryan's recollection of the sequence of events and when the relevant conversation occurred is uncertain. Secondly it is clear that he does not have a precise recollection of the conversation. His ultimate position was rather than express a concern about questions relating to the charges he "was concerned about disclosing portions of the defence."

Having regard to Mr Ryan's lack of precision, his evidence as to the substance of the advice he received from senior counsel and his ultimate position that he was concerned to protect CB from having to disclose his defence the challenge to her Honour's conclusion has substance. I have difficulty in accepting that either party contemplated that there would be any useful discussion in the examination without there being some questions which at least in a general sense related to the charges. The advice which Mr Ryan received from senior counsel seems to have contemplated that this would occur. However, in the event I do not believe the resolution of this issue is necessary. What matters in so far as it can be ascertained are the questions which were actually asked during the examination and their consequence, if any, for the prospective trials.

The course of the examination

I have previously indicated that although a transcript of the examination of CB was taken it was not tendered before the primary judge and this Court has not seen it. Knowledge of the questioning which occurred is confined to the secondary evidence of some of those present at the examination.

Ms Austin confirmed that the examination was initiated by the AFP rather than the ACC.

The situation is complicated by the presence of Mr Hussain at the examination. Mr Hussain, an AFP officer, had on occasions been part of the surveillance team that conducted surveillance as part of Operation "X". He has not conducted surveillance on CB. He has not otherwise been involved in the investigation of either MP or CB. However, because a joint trial is contemplated Mr Hussain has been included on a prospective witness list. Given his limited contribution whether he will be called to give evidence is uncertain. As I understand the position his evidence would be limited to the formalities necessary to support the tender of the surveillance material.

The primary judge recorded the fact that Mr Hussain had known Mr Briggs, the AFP officer in charge of the investigation for 13 years and that they enjoyed a close professional relationship. This would no doubt be a common occurrence with members of the AFP who may from time to time work with the ACC.

The primary judge found that it was Mr Briggs who "initiated" and drove the examination. He had prepared a "significant events chronology" a "summary of investigation" and a document containing "suggested lines of questioning." Mr Briggs apparently met with Mr Hussain and Ms Austin to brief them about the investigation. Mr Hussain served the summons on CB and was nominated as the "ACC contact officer." It also seems from an exchange which occurred between Mr Hussain and Mr Ryan at the ACC hearing rooms that Mr Hussain has considerable knowledge of the evidence which the prosecution propose to tender at any trial of MP and CB.

The primary judge found, and it is essential to her reasoning that "a central purpose" of the examination was to gather information in relation to the charges. This finding is challenged in this Court.

In his evidence before the primary judge Mr Ryan expressed his concerns that Mr Hussain had been present during the examination and appeared to be giving instructions to Ms Austin. However, his affidavit is heavily redacted and he does not give evidence as to the questions asked of or the answers given by CB. His evidence was, as I have indicated that he remembered thinking at the time "that the examination commenced in questions that were asked pertaining to the charges themselves." He said he remembered thinking that "this is not going to plan." He said that he remembered thinking at the time "they're touching upon the current charges."

Mr Ryan did not raise any issue of concern with the Examiner. Although his evidence is clear that he recollects questions "pertaining" or "touching upon the charges" he does not give evidence that matters disclosing any portion of CB's defence were touched upon. That was the issue which he said was of concern to him.

The evidence of Ms Austin was that the purpose of the examination was "to understand methodologies used in the manufacture of amphetamine-type stimulants." She agreed when cross-examined that CB was asked questions relating to the charges - responding "Broadly, in matters that related to the charges."

The following exchange occurred:

"Q: I mean there would be no point to that because you had your own in-house forensic chemist who would be able to answer all those sorts of questions.

A: Yes, I'm not qualified, I don't have the expertise to - I have some understanding but I don't have the expertise to ask very complex questions in relation to science, chemistry and--

Q: But what I mean is why would you get in an alleged criminal to ask him how you manufacture amphetamines when you've got a forensic chemist who is part of your staff who you could readily ask such questions of?

A: Because - and I can only speak in general terms, but the general, sometimes people, particularly people who have a scientific background and have studied have looked at new - may have looked at new ways in which to manufacture these compounds that are eventually - that may be termed narcotics that our chemists are yet to understand."

Later she was asked:

Q: Because the purpose of the examination was to further the purposes of the investigation of these charges, wasn't it?

A: Not to my knowledge.

Q: What was the purpose of the examination?

A: Without saying what occurred during the examination, to understand methodologies used in the manufacture of amphetamine-type stimulants.

Q: But he was asked questions about these charges specifically--

A: Broadly, in matters that related to the charges, yes.

Q: The examination wasn't confined to objective matters of science and technology, as it were, in relation to the manufacture of the substances, was it?

A: Correct."

In her evidence Ms Austin said that she believed that having regard to the terms of the summons, she was entitled to ask questions relating to the pending criminal charges. No objection was taken to her questions and she was not stopped by the Examiner from asking any questions.

She was asked about the role of Mr Hussain in the examination:

"Q: Mr Hussain's function was to make notes of the examination, wasn't it?

A: I do not say it's part of his function, but it is something that he did.

Q: He did. And he took those notes away at the end?

A: I do not know.

Q: And you don't know what the purpose of his taking notes was?

A: Well he was taking notes of what occurred during the examination.

The primary judge made findings about the examination and the participation of various persons. Her Honour found that not many questions were asked of CB about the science of drug manufacture. However, her Honour found that CB "was examined in detail about the charge pending against him." Drawing upon the evidence of Mr Hussain her Honour found:

"He was asked about his discussions with others concerning the manufacture of stimulant drugs, his relationships with alleged co-conspirators, whether there were discussions with alleged co-conspirators in relation to the manufacture of drugs, overseas travel, whether he himself had manufactured drugs, whether he had been given precursor chemicals by a co-conspirator, and whether he had provided technical assistance to others in relation to the manufacture of drugs. There were 'a lot of questions' on these topics, Most of the day was occupied with questions on these or similar topics (Mr Hussain's evidence)."

The position of Mr Hussain

The case made by CB before the primary judge was that the examination had as a central purpose the gathering of information in relation to the criminal proceedings for the purpose of furthering the prosecution. Central to his case was that information obtained in the examination was communicated to the prosecuting authorities. The submission focused on the role of Mr Hussain.

Mr Hussain was present throughout the examination and took notes during it which he said, without contradiction, were taken back to his office at the AFP and placed in a locked filing cabinet.

Mr Hussain gave evidence that he had communicated information to no one. Her Honour without any apparent evidentiary foundation was sceptical of his evidence saying that although Mr Hussain appeared to be a forthright witness "it is always difficult to assess the credibility of an experienced police officer." That comment was not appropriate. I do not understand her Honour to have rejected Mr Hussain's evidence.

In any event the evidentiary position is plain. There was the evidence of Mr Hussain and nothing to contradict or even cast doubt upon it.

The decision of the trial judge

Having determined that she could not find that information gained during the examination had been disseminated her Honour identified the first question which she was required to answer as "whether the compulsory interrogation of an accused under the ACC Act about pending charges constitutes an interference with the administration of justice." It is not apparent that CB put his case in that manner.

Her Honour records that CB's counsel did not put to either Mr Hussain or Ms Austin that the purpose of the examination was to assist in the investigation or prosecution of the accused. However, her Honour did not believe that in the circumstances this was necessary. Her Honour explained the position:

"The s 7C determination predated the charging of the applicants. It was always the applicants' case that the unspoken agenda of the examination was to further the prosecution and that Mr Hussain had actually disseminated information to the AFP in its capacity as investigator/prosecutor of the charges that had been laid. Consequently, there was no need to put to the witnesses that the purpose of the examination was to assist the investigation and prosecution.

The terms of the summons, the timing of the examination, the role of Mr Briggs, Mr Hussain and the AFP generally in relation to the examination, and the subject matter canvassed during the examination support a strong inference that, although there may have been other purposes as well, a central purpose of the examination conducted by the ACC was to gather information in relation to the subject matter of the criminal proceedings against the accused and his allege co-conspirators, presumably for the purpose of furthering the prosecution.

In these proceedings, the applicants did not argue that such a purpose was beyond the power of the ACC. Rather, they relied upon the purpose as material supporting their contention that information obtained through the examination was actually conveyed to the authorities prosecuting the trial."

Her Honour concluded that there had been a serious interference with the administration of justice. She found that the adversarial nature of the trial had been subverted. Although she could not find that any of the information gathered in the examination had been disseminated her Honour found that "the accused and the public are likely to be concerned that material has been disseminated, undermining confidence in the independence and impartiality of the criminal justice process." Her reasoning involves an express rejection of the decision of the Full Court in Australian Crime Commission v OK (above) in respect of which her Honour said of the decision of Emmett and Jacobson JJ that it was "plainly wrong."

Relevant Provisions of the ACC Act

The functions of the ACC are set out in s 7A of the ACC Act, which provides:

"The ACC has the following functions:

(a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;

(b) to undertake, when authorised by the Board, intelligence operations;

(c) to investigate, when authorised by the Board, matters relating to federally relevant criminal activity;

(d) ..."

Pursuant to section 7C(3) of the Act:

"The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective."

Sections 12(1) and 59(7) of the ACC Act provide for the dissemination by the CEO of information gathered in the course of an examination:

"12(1) Where the ACC, in carrying out an ACC operation/investigation, obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, being evidence that would be admissible in a prosecution for the offence, the CEO must assemble the evidence and give it to:

the Attorney-General of the Commonwealth or the State, as the case requires; or

the relevant law enforcement agency;... "

"59(7) The CEO may give to

any law enforcement agency or

any information that is in the ACC's possession and that is relevant to the activities of that agency or body if it appears to the CEO to be appropriate to do so; and to do so would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply." (emphasis added)

Section 24A refers to the purpose of an examination and states:

"An examiner may conduct an examination for the purposes of a special ACC operation/investigation "

Section 28 provides the power to summons witnesses and to take evidence.

Subsections 25A(3) and (9) provide for the security of evidence given before an examiner. Section 25A provides:

"(3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

...

(9) An examiner may direct that:

(a) any evidence given before the examiner; or

(b) the contents of any document, or a description of any thing, produced to the examiner; or

(c) any information that might enable a person who has given evidence before the examiner to be identified; or

(d) the fact that any person has given or may be about to give evidence at an examination;

must not be published, or must not be published except in such manner, and to such persons as the examiner specifies. The examiner must give such a direction if the failure 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.

(10) Subject to subsection (11), the CEO may, in writing vary or revoke a direction under subsection (9)

(11) 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 (emphasis added)

The requirement for an examiner to make a non-publication order under s 25A(9) to avoid prejudice to a person's fair trial clearly would include the circumstances of CB.

Section 29A provides for the relevant notations relating to disclosure to be placed on the summons:

"(1) The examiner issuing a summons under section 28 or a notice under section 29 must or may as provided in subsection (2) include in it a notation to the effect that disclosure of information about the summons or notice or any official matter connected with it is prohibited except in the circumstances if any specified in the notation.

(2) A notation must not be included in the summons or notice except as follows:

(a) the examiner must include the notation if satisfied that failure to do so would reasonably be expected to prejudice:

(i) the safety or reputation of a person or

(ii) the fair trial of a person who has been or may be charged with an offence, or

(iii) the effectiveness of an operation or investigation.

(b) the examiner may include the notation if satisfied that failure to do so might prejudice:

(i) the safety or reputation of a person or

(ii) the fair trial of a person who has been or may be charged with an offence, or

(iii) the effectiveness of an operation or investigation.

(c) the examiner may include the notation if satisfied that failure to do so might otherwise be contrary to the public interest."

Section 30 provides that a person appearing as a witness must answer questions but provides protection with respect to their use:

"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) Where:

(a) a legal practitioner is required to answer a question or produce a document at an examination before an examiner; and

(b) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;

the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom or by whom the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner refuses to comply with the requirement, he or she shall, if so required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made.

Use immunity available in some cases if selfincrimination 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) in the case of the production of a document that is, or forms part of, a record of an existing or past business-the document sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; and

(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:

(c) confiscation proceedings; or

(d) 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 not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years.

(7) Notwithstanding that an offence against subsection (1), (2) or (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.

(8) Where, in accordance with subsection (7), a court of summary jurisdiction convicts a person of an offence against subsection (1), (2) or (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year.

Legal professional privilege

(9) Subsection (3) does not affect the law relating to legal professional privilege."

Section 30 abrogates the common law privilege against self-incrimination but provides use immunity. The consequence is that an examinee must answer incriminating questions that are asked during an ACC examination, whether or not the examinee faces criminal charges. In A v Boulton [2004] FCA 56; (2004) 204 ALR 598, Weinberg J agreed with the decision of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059; (2003) 132 FCR 251 that, when s 30(2) (b), (4) and (5) of the ACC Act are read in combination, the effect is that the privilege against self incrimination is abrogated by necessary implication. This approach was followed in Hak Song Ra v Australian Crime Commission [2004] FCA 416; (2004) 138 FCR 51, Loprete v Australian Crime Commission [2004] FCA 1476, X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413 and CC v Australian Crime Commission [2005] FCA 754. In Stoddart v Boulton & Anor [2010] FCAFC 89 at [140] Logan J considered that the outcome in Boulton was "an unremarkable conclusion".

Relevant authorities

The starting point for a discussion of the applicable law is the decision of the High Court in Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188. Hammond had been charged with conspiracy in breach of a Commonwealth law arising from his involvement in the meat export industry. After he was charged he was called to give evidence before a Royal Commission which was inquiring into whether malpractices had occurred in the handling of meat. It was clear that the questions he was to be asked at the Commission related to the alleged conspiracy upon which he had been committed for trial. The Royal Commission hearings were to occur in camera.

Hammond successfully moved in the High Court for an injunction to restrain the Commission from examining him. His primary submission was to the effect that there was "a real risk, as opposed to a remote possibility, that justice would be interfered with."

In his reasons for judgment Gibbs CJ emphasised that the application had of necessity been dealt with urgently, a matter which was later commented on by Dawson J in Hamilton v Oades [1989] HCA 21; 166 CLR 486 at 508. The Chief Justice accepted that the hearing would take place in private and the answers which Hammond gave could not be used at his trial. However, the record of the argument indicates that although the proceedings were to be held in private the Royal Commission had decided to permit the transcript to be made available to the Crown. Derivative use of Hammond's evidence was accordingly a possibility if not a reality.

In the circumstances the Chief Justice concluded that "the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence" (at 196). This finding was critical to the court's reasoning.

In his reasons for judgment Brennan J emphasised that "it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt or innocence of an offence with which he has been charged."

Deane J said (at p 206):

"It is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court. Such an extracurial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court. Where a court is exercising the judicial power of the Commonwealth pursuant to s 71 of the Constitution, such interference involves a derogation of the constitutional guarantees that flow from the vesting of the judicial power of the Commonwealth in courts of law. "

When considering the relevance of the decision for present purposes it is important to firstly appreciate that Hammond was concerned with questioning of a person using the powers of a Royal Commission. Subsequent cases have considered similar issues but in the context of a particular statute authorising a particular inquiry. Secondly, and for present purposes of greater significance Hammond concerned an application to restrain the process of the inquiry. It was not concerned with and did not consider whether the prospective trial of Hammond could, or if the Commission had proceeded, would be stayed.

Similar issues were considered in Hamilton v Oades & Anor which was concerned with the examination of a company director under s 541(3) of the Companies (New South Wales) Code. That section empowered the Supreme Court to order that a director of a company be examined in matters relating to the affairs of the company. Subsection (12) provided that a person may not refuse to answer a question on the ground that the answer might tend to incriminate him but, provided objection was taken the answer was not admissible against the person in criminal proceedings.

The High court reversed the decision of the NSW Court of Appeal and held that the provision of the Companies Code, which provided for the court to give directions with respect to the examination, did not empower the court to relieve a person from an obligation to answer questions on the ground that they may incriminate him. However, questions which required the company director to disclose his or her defence to a charge could be rejected.

Mason CJ said at 498:

"The court retains its power to give directions and to restrain questions in cases where the examination is being conducted for an improper purpose or constitutes an abuse of process: s.541(5). Thus if a liquidator were to conduct an examination directed to compel the examinee to disclose defences or to give pre-trial discovery, or to establish guilt, this examination may be restrained as an abuse of process: Hugh J. Roberts, at p 541; Huston v. Costigan (1982) 45 ALR 559, at p 563; Re Gordon. But this is not the present case. "

With respect to the "right to silence" and the "right" not to disclose a defence Mason CJ said:

"There are two other matters to be mentioned. The Court of Appeal referred to the respondent's right not to disclose his defences to the pending charges. Except in the sense that a witness enjoys what is known as the right to silence, the respondent has no relevant right, either at common law or by virtue of statute. The privilege against self- incrimination would not ordinarily protect a person against disclosure of his defence to a criminal charge. The so-called right not to disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed. In some instances there is such a specific requirement, for example, in relation to alibi defences. And there is implicit in the general words of s.541 such a general requirement. The possibility of disclosure of a defence is, accordingly, not a matter in respect of which a witness needs to be protected, except perhaps in the most exceptional circumstances."

The reasons for judgment of Toohey J are also instructive in the present context. I have included below his Honour's discussion of the issue in which he draws upon the judgment of Barwick CJ in Mortimer v Brown [1970] HCA 4; 112 CLR 493:

"A useful starting point in the consideration of the relevant law, given the existence of s.541(12), is the decision of this Court in Mortimer v. Brown. As already noted, the decision concerned a public examination under s.250 of The Companies Acts, 1961 to 1964 (Q.). Section 250(3) empowered the Court to "put or allow to be put such questions to the person examined as the Court thinks fit". There was no provision comparable to s.541(12) of the Code. In the view of this Court, an examinee could not decline to answer a question on the ground that the answer might tend to incriminate him.

The main judgment was given by Walsh J., with whom Barwick C.J., Windeyer and Owen JJ. agreed. But a passage from the judgment of Barwick C.J., at p 495, is particularly apposite here:

'As appears from the reasons of my brothers the language of the statute makes the answering of every question imperative. The Parliament has made it abundantly clear that the so-called right to be silent which the common law sought to protect was not to be available to the examinee: and, as both my brother Kitto and my brother Walsh observe, the very purpose of the inquiry makes such a course inevitable if that purpose is not frustrated and the inquiry rendered nugatory. The common law cannot maintain a right in the citizen to refuse to make incriminating answers in the face of a statute which by its expression clearly intends, as does the present, that all questions allowed to be put shall be answered.

...

In my opinion, it being the question and not the answer with which (the judge) is primarily concerned, the mere circumstances that a question appropriate to the nature and the stage of the particular inquiry might or certainly would incriminate the examinee could rarely, if ever, be itself a reason for disallowance of the question. But, of course, the question may be so peripheral, or seek merely confirmation of facts of which proof is already firmly in the hands of the liquidator or that some other circumstance exists that it would be oppressive or unjust to place the examinee in the position of being bound by his answer to incriminate himself, or even placed in jeopardy of doing so."

I respectfully agree with those observations. A protection against self-incrimination in the terms enunciated by the Court of Appeal gives no effective operation to s.541(12). And that is so notwithstanding the qualification expressed in the words "concern those facts which constitute the ingredients of the offences ...". The areas of inquiry specified by the appellant liquidator may well concern those very facts. The power vested in the Court by s.541(5) to give directions as to the matters to be inquired into may be used to ensure that the matters to be inquired into are relevant to the object of the examination. And, as Barwick C.J. pointed out in Mortimer v. Brown, a question may be so peripheral that it would be oppressive or unjust to require an answer. It is not hard to think of other examples of oppression or injustice. Clearly, a question designed to elicit a direct admission of guilt would fall into this category. See also Huston v. Costigan (1982) 45 ALR 559, at p 563. But it is not enough that the answer to a question may tend to incriminate the person examined. It is precisely this sort of answer that s.541(12) allows so that the affairs of the company may be relevantly investigated."

Similar issues were considered by the High Court in Victoria v Australian Building Construction Employees and Builders Labourers Federation [1982] HCA 31; 152 CLR 25. By majority (Murphy J dissented) the court held that in the absence of a contrary law the Crown may appoint a Commission of Inquiry into whether an individual has committed an offence. However, if not authorised by a particular statute an inquiry which involves a tendency to interfere with the administration of justice may be in contempt of court ( p 54).

The issue was again considered in Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281 in which the High Court distinguished the decision in Hammond. Gibbs CJ said at (at 298):

"Similarly, it is no necessary impairment of federal judicial power that a person who may subsequently come to be tried has been compulsorily interrogated before the trial. Hammond v. The Commonwealth [1982] HCA 42; (1983) 152 CLR 188 is distinguishable. That was a case in which the plaintiff, who was called to give evidence before a Royal Commission, was awaiting trial for a criminal offence, and there was a real possibility that if he was required to answer incriminating questions the administration of justice would be interfered with. Under s. 6A, as now in force, a person who is the subject of a pending charge before a court is not denied the privilege of refusing to answer before a Commission questions that might incriminate him of the crime with which he is charged, and neither plaintiff in the present case has been charged. In Kempley v. The King (1944) ALR, at p 252 Latham C.J. said that there was no substance in the argument that it was beyond the legislative power of the Commonwealth to alter the common law as to incriminating questions. I am in agreement with that statement. There is in my opinion no doubt that s. 6A was validly enacted. (at p299)

Accordingly, the position is generally that an executive inquiry with compulsory powers will not constitute an interference with the administration of justice and be liable to be restrained as a contempt of court where no charges have yet been laid. Clough v Leahy (1904) 2 CLR 139 at 161. The Parliament may authorise an inquiry which requires a person to answer questions relating to an offence and even disclose elements of their defence to a charge.

However, an executive inquiry with powers of compulsion directed towards the establishment of guilt of an accused who has been charged with the relevant offence raises different considerations. In McGuinness v AG of Victoria [1940] HCA 6; 63 CLR 73 it was determined that such an inquiry has a tendency to interfere with the administration of justice because its purpose is to make the finding which the court is charged with making (see also Victoria v BLF at 54).

In the present case the examination took place after charges had been laid. However, there was no evidence and no finding by the trial judge to the effect that the ACC's examination was directed towards establishing the guilt of CB. Her Honour's findings were that a central purpose of the examination was to gather information into the subject of the criminal proceedings which her Honour said was "presumably for the purpose of furthering the prosecution." But there was no suggestion that the ACC would proceed to make findings with respect to matters concering CB's prospective guilt.

The most recent consideration of the issue and in the context of the ACC is the decision of the Full Federal Court in Australian Crime Commission v OK (above). Again it is important to be mindful of the fact that the court was considering an application to restrain the conduct of the ACC not the stay of a criminal prosecution. The majority Emmett and Jacobson JJ concluded that the Act permits an examination to continue on a subject matter directly relating to a pending criminal charge so long as the protective prohibitions contemplated by s 25A(3) and (9) have been put in place. Their Honours said:

"[105] To succeed in obtaining an injunction on the ground that further examination of a person charged with an offence would constitute contempt of court, it is necessary to establish that there is a 'real risk', as opposed to 'a remote possibility', that justice would be interfered with, if examination of the person continued with questions about the alleged offence. That is to say, before the Court should intervene, the tendency of the proposed examination to interfere with the course of justice must be a 'practical reality': a theoretical tendency' is not enough (see Hammond's Case 152 CLR at 196).

[106] In Hammond's Case the High Court considered that, once it was accepted that Mr Hammond would be bound to answer questions designed to establish that he was guilty of the offence with which he was charged, there was a real risk that the administration of justice would be interfered with. While the examination would take place in private, and the answers may not be used in the criminal trial, the High Court considered that the fact that Mr Hammond had been examined, in detail, as to the circumstances of the alleged offence, was likely to prejudice him in his defence. The High Court considered that, if during the course of an inquiry into allegations that a person had been guilty of criminal conduct, a criminal prosecution were commenced against that person based on those allegations, the continuance of the inquiry would, generally speaking, amount to a contempt of court. In those circumstances, the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings (see Hammond's Case at 198-199).

[107] A significant difference between the circumstances of Hammond's Case and the circumstances of the present case is the regime that is now provided for in s 25A of the Commission Act. Under the Commission Act generally, and s 25A in particular, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness. The Commission Act provides its own statutory safeguards to avoid risk to the fair trial of such a charge. On its true construction, the Commission Act permits an examination to continue on a subject matter directly related to a pending charge so long as the protective prohibitions contemplated by s 25A(3) and 25A(9) have been put in place. Such principle as might relevantly be drawn from Hammond's Case is displaced by the express provisions of the Commission Act.

[108] The duty and power imposed by s 12(1) on the CEO and the Commission must be read as being subject to the protective prohibition in s 25A(9). Further, the authority given to the CEO under s 59(7) to give information is qualified by reference to action contrary to a law of the Commonwealth. Clearly enough, where a direction under s 25A(9) is in force, giving information contrary to that direction would be giving information contrary to a law of the Commonwealth that would otherwise apply. A direction under s 25A(9) would also operate in relation to the other powers and authorisations dealt with in s 59. Thus, s 25A, and provisions such as ss 12 and 59, dealing with the assembling and giving of evidence and the dissemination or furnishing of information, are capable of working harmoniously so as to ensure that investigation into serious organised crime and the dissemination of intelligence gathered by the Commission proceed in a timely manner, without prejudicing the fair trial of an accused person.

[109] The objects of the Commission Act could be seriously impaired if its investigations had to stop for an indeterminate period because charges had been laid. The public interest requires the investigation of a federally relevant criminal activity to continue. The right to a fair trial will not be compromised merely by the asking of questions of an accused person in circumstances where appropriate confidentiality is ensured. The public interest in the administration of justice, in particular to the right to a fair trial, is preserved by the statutory safeguards referred to in [43] above. In this way the legislation achieves a balance between the public interest in the investigation of federally related criminal activity and the public interest in the right of an accused person to a fair trial. Compromise, if any, would occur by reason of the deployment or dissemination of information obtained in a way that poses a real risk to a fair trial. A non-publication direction made under s 25A of the Commission Act remains operative unless and until it is varied or revoked. Such a direction binds the Board, the Commission and the CEO when disseminating, under s 12 or s 59, any information gathered at an examination conducted subject to such a direction.

[110] The coercive powers conferred on examiners do not come to an end on the laying of criminal charges. The provisions of s 25A clearly contemplate examinations continuing in the face of pending charges. The provisions confer on an examiner, and on the CEO, powers to ensure that there is no real risk to a fair trial. That is to say, the terms of the provisions expressly contemplate that the examiner must give a direction if the failure to do so might prejudice the fair trial of a person who has been charged with an offence. Further, the CEO must not vary or revoke a direction once made, if the CEO forms the view that the revocation or variation might prejudice the fair trial of a person who has or may be charged with an offence.

[111] Although s 12 is not qualified in the same way as s 59(7), imposing, as it does, a mandatory obligation on the CEO to assemble and give evidence to persons and agencies, including prosecuting authorities, it is capable of working harmoniously with s 25A. A direction given under s 25A(9) is effective, and overrides the statutory obligation imposed by s 12 or s 59 on the Commission, the CEO or the Board to assemble and give evidence or disseminate and furnish information or reports. In other words, while the CEO, the Board and the Commission are at all times required to perform their respective statutory obligations to assemble and give evidence and to disseminate or furnish information, that requirement must be understood as being subject to the provisions that they do so in a manner that is not inconsistent with a direction under s 25A(9). For example, the CEO, the Commission and the Board would be able to disseminate information gathered at an examination to relevant agencies if they were satisfied, on the basis of appropriate evidence, that appropriate safeguards were in place, to ensure that the investigating and prosecuting teams in the relevant agencies dealing with pending charges could not be given access to that information. The dissemination obligations arising under the Commission Act can be complied with without risk to a fair trial.

[112] Section 51, dealing with secrecy, does not cut across that analysis. Section 51 imposes an obligation of secrecy quite separate and apart from any obligation arising from a direction given under s 25A(9). In so far as there is an exception to the obligation imposed by s 51, to the extent that a person may, for the purposes of a relevant act, divulge or communicate information, that is merely an exception to the obligation imposed by s 51. It is not an exception to the obligation arising from a direction given under s 25A(9).

[113] The application of the safeguards of s 25A(9) in the circumstances of the present case means that there is no real risk to the fair trial of the Witness. There is no reason to suspect that the CEO or any member of the Commission or the Board would act contrary to such a direction. There is no practical reality that the course of justice and a fair trial for the Witness would be interfered with by reason only of the witness being required to answer questions, so long as an appropriate direction is in force under s 25A(9). Whether a contempt of a criminal court might occur is a matter for that court. In the light of the analysis set out above, there is no real risk that the continuing questioning of the Witness would constitute a contempt. In those circumstances, the primary judge erred in concluding that there was a real risk that compelling the Witness to answer questions directly relating to the subject matter of the Charge against him under the State Act would result in a prejudice to his fair trial or interfere with the course of justice or constitute a contempt."

Similar reasoning to that of Emmett and Jacobson JJ is found in the judgment of Jessup J in ABC v Sage [2009] FCA 170;175 FCR 319 at 331 [29]-[31]:

"I accept the submissions made on behalf of the respondent with respect to this point. The provisions of the ACC Act referred to are manifestly calculated to reduce to the minimum the prospect that evidence given in an examination will find its way into the hands of authorities or persons other than those to whom, in accordance with directions given by an examiner, it is limited. On the facts of the present case, I consider that the directions given by the respondent, and the administrative steps taken by the Commission, are such as would eliminate any real, as distinct from theoretical, risk of an interference with the administration of justice, should the applicant answer the question put to him as required. I am particularly influenced by the direction given under s 25A(9) of the ACC Act. Save to refer to subs (12) of s 25A, counsel for the respondent was unable to suggest any means by which that direction would not, as a practical matter, produce its intended effect, namely, of protecting the fair trial of the applicant from being prejudiced by the leakage of details of the applicant's evidence given in the examination. With respect to subs (12), I accept the respondent's submissions that this court ought not lightly anticipate that the court to which evidence might be available under that subsection would allow that evidence to be further disseminated in a way that might prejudice the fair trial of the applicant.

The facts of the present case are quite different from those which led to the judgment of the High Court in Hammond v The Commonwealth. In that case, police officers involved in the investigation upon which the forthcoming prosecution was based were permitted to be present during the administrative examination (see 152 CLR at 194). Here, by contrast, not only are those police officers not present (and not permitted to be present), but the respondent has taken the steps contemplated by the ACC Act to make it as certain as may be that those involved in the prosecution of the applicant will not come to learn of the substance of his evidence in the examination.

I take the view, therefore, that the continuation of the examination of the applicant by the respondent, including the respondent's requirement that the applicant answer the question to which he objected, would not present a real risk of an interference with the administration of justice and would not, therefore, be in contempt of court. That conclusion makes it unnecessary for me to consider the respondent's related points, namely, whether, as a matter of balance, the public interest in the continuation of the Commission's work in the special investigation outweighs the public interest in avoiding risks of interference with the administration of justice, and whether, as a matter of construction, the provisions of the ACC Act to which I have referred evince a legislative intention to tolerate the existence of risks to the administration of justice, either absolutely or in circumstances where directions have been given."

Spender J dissented in OK. His Honour said:

"[9] In my judgment, the High Court held (a reference to Hammond) that it was the questioning and the compulsion to answer about the charge that was very likely to prejudice him in his defence (per Gibbs CJ), and would constitute an interference with the due administration of criminal justice (per Deane J), and that the continuance of the inquiry would amount to a contempt of court. A parallel inquisitorial enquiry by the executive, when the person summoned is compelled to be sworn as a witness, and is subject to questioning about a pending criminal charge, constitutes in itself injustice and prejudice to the person summoned who has been charged with that criminal offence. An accused person is entitled to reserve his or her defence until that person is on trial."

And later:

"[12] In my opinion, the appeal from the judgment and orders of Justice Mansfield should be dismissed. I agree with the reasons that Mansfield J gave for his conclusions, except that, in my respectful opinion, it is irrelevant whether, notwithstanding confidentiality directions, there would still be a risk of disclosure to the investigation and/or prosecution authorities of the questions asked and the answers given by the summoned person. Mansfield J seems to suggest that there was such a risk, whereas the majority conclude that there was no such risk of disclosure to those authorities."

The primary judge in the present case was of the view that the approach of the majority in OK failed to give adequate recognition to three matters:

"(a) first, the respondent's "right to silence" and his "right to reserve one's defence until trial" which was undermined by the examination;

(b) second, that the examination subverted the adversarial nature of a criminal trial, with its obligations of proof on the prosecution and the rights and privileges it accords to the accused; and,

(c) third, a concern on the part of the accused and the informed public that information may have been disseminated "undermining confidence in the impartiality of the criminal justice process" and the "prosecuting authorities" (at [84])."

It is important to appreciate as the ACC submitted that the so called "right to silence" expresses not a single right, but is a shorthand description of an amalgam of immunities the most prominent of which, for present purposes, are the immunity of an accused from being required to answer questions or provide information which is incriminating, from being compelled to give evidence at their own trial and (to some extent) from having adverse comment made on his or her failure to give evidence or provide information.

In some respects, the ACC Act abrogates a number of immunities associated with the shorthand description of "right to silence." It obliges persons summonsed to appear at an examination to answer questions (see section 30(2)) and abrogates the privilege against self-incrimination (section 30(4)). However, by reason of the retention of "use immunity" in section 30(5) of the ACC Act in relation to answers given at an inquiry over an objection based on self-incrimination and the confidentiality provisions in sections 25A(9) and 29A of the ACC Act designed to protect the fairness of trials of persons who have been or may be charged with an offence, it is clear that the ACC Act operates to protect the fairness and integrity of extant trials by preserving them from the effect of its qualification of the "right to silence".

In NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456 ("Nutricia") Spigelman CJ identified the "accusatory system" (which is synonymous with what the trial judge referred to as the "adversarial nature" of criminal trials) as a "fundamental element of the traditional method of determining criminal guilt" (at 490, [155]). In Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74;178 CLR 447 (EPA v Caltex) at 503 Mason CJ and Toohey J identified two aspects of the "accusatory system" of criminal justice: first, that the onus of proof beyond a reasonable doubt rests on the Crown and, secondly, that "an accused person cannot be required to testify to the commission of an offence charged."

In Nutricia Spigelman CJ concluded that a power of a prosecutor to require an accused the subject of extant charges to answer questions to "provide information for the purposes of those charges" was an abrogation of the accusatory system (at 491, [159], emphasis added). In contrast, in EPA v Caltex Mason CJ and Toohey J considered that a statutory power to require an accused to produce documents did not compromise the accusatory system. Similarly, in Nutricia Spigelman CJ concluded that an exercise of a statutory power which required an accused the subject of extant charges to provide information which could be derivatively (but not directly) used against the accused did not necessarily impinge the accusatory system (at 492, [164] - 493, [172]).

With respect to the ACC Act where an accused the subject of an extant charge is summonsed to appear at an examination under s 28 of the ACC Act but is protected against direct use of any answers given over an objection based on the privilege against self-incrimination by reason of section 30(4) and protected from derivative use by reason of confidentiality directions given pursuant to section 25A(9) and section 29 of the ACC Act, there is no possible compromise of the accusatory system of criminal justice. The onus of proof still lies on the prosecution. The accused cannot be made to testify in or in connection with the trial to the commission of the offence charged. The accused's rights and privileges at the trial are preserved.

To my mind the primary judge's statement (at [84(1)]) that "[a]n accused person should not be tried twice; first by secret coercive examination and then in open court where the accused enjoys rights and protections" cannot be accepted. An executive inquiry or investigation which does not and cannot lead to any findings of guilt, any conviction or any punishment is not, in any sense of the term, subjecting the accused to a "trial": Victoria v BLF at 52 - 53, 152 - 153.

With respect to the issue of public confidence the trial judge found that the evidence provides no basis to conclude that statutory directions protecting the confidentiality of the contents of an examination conducted under the ACC Act and preventing its disclosure to prosecuting authorities have not been observed. An apprehension of impartiality on the part of prosecutors can provide a basis to exclude those prosecutors from participation in a trial: R v MG [2007] NSWCCA 57; 69 NSWLR 20 at 41, [65] - 48, [100]. However, I am not aware of any authority to support the proposition that such a concern would support a conclusion that a contempt of court had occurred, or that a permanent stay of the proposed trial was appropriate.

The primary judge concluded that "reposing the product of a collateral executive examination of an accused person upon matters of which he or she is accused in the discretion of a prosecuting or investigating officer fatally weakens the operation of criminal courts in accordance with the rule of law" (at [84(2)]). I do not share her Honour's view. The purpose of the confidentiality obligations in s 25A(9) and s 25A of the ACC Act is to prevent the information obtained during the examination from being used by prosecuting or investigating authorities in the trial of a person who has or may be charged with an offence. Furthermore, where a failure to make such an order might prejudice the fair trial of such a person, there is no discretion as to whether such confidentiality obligations are to be imposed. Section 25A(9)(c) imposes that obligation.

The ACC submitted that in this respect her Honour's approach to the concept of the rule of law was misplaced. With respect to her Honour this submission should be accepted. As Dawson J pointed out in Hamilton v Oades (at 509) concepts such as the due process of law or the rule of law derive their "meaning only from the law, whether common law or statute law, as it exists, from time to time". The ACC Act forms part of the "rule of law" as much as any other element of the common law or statute law.

At [102] of OK Emmett and Jacobson JJ referred to the principle expressed by the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71] concerning the need to construe a statute harmoniously; where conflict appears, adjusting the meaning of the competing provisions to best give effect to the purpose and language of the provisions, while maintaining the unity of the statute as a whole and, where necessary, identifying the leading provisions and subordinate provisions in the statute.

Applying these principles to the interaction of the confidentiality provisions in sections 25A(9) and 29A of the ACC Act and the obligations and powers of disclosure of the CEO and the Board of the ACC in sections 12(1) and 59(7) of the ACC Act, Emmett and Jacobson JJ in Australian Crime Commission v OK at 277, [108] - 278, [111] reasoned as provided in their judgment at [108], [109] and [111] which I have included above.

The primary judge expressed doubt as to this reasoning (at [78]) and concluded that it "may well be wrong" (at [82]) The primary judge did not develop her reasons for that conclusion. In this regard, the primary judge appeared to prefer the reasoning of the primary judge, Mansfield J in OK v Australian Crime Commission (at [69]).

I do not share the primary judge's doubts. The reasoning of Emmett and Jacobson JJ in Australian Crime Commission v OK is an appropriate application of the direction in Project Blue Sky v Australian Broadcasting Authority to construe statutory provisions harmoniously, giving prominence to the leading provision and subservience to the subordinate provision while maintaining the unity of the statutory scheme as a whole. Neither the primary judge nor Mansfield J in OK v Australian Crime Commission attempted the task mandated by Project Blue Sky v Australian Broadcasting Authority.

The identification of sections 25A(9) or 29A(2) (and a direction made pursuant to it) as the leading provision to which the duties and rights of disclosure in sections 12(1) and 59(7) of the ACC Act are subservient is indicated by:

(a) first, the fact that section 25A(9) of the ACC Act is a special provision and sections 12(1) and 59(7) are general provisions;

(b) second, the fact that sections 25A(9) or 29A(2) of the ACC Act are concerned to protect a fundamental common law right, being the right to a fair trial of a criminal charge: Nutricia at 486, [129] - 487, [136];

(c) third, the fact that the CEO of the ACC has a specific power in section 25(10) to vary or revoke a direction made under sub-section (9), but which power is ousted when to vary or revoke the direction would prejudice the fair trial of a person who has been or may be charged with an offence.

Accordingly, in my opinion the conclusion of Emmett and Jacobson JJ in Australian Crime Commission v OK to the effect that a confidentiality direction made sections 25A(9) and 29A of the ACC Act overrode the obligations and powers of disclosure of the CEO and the Board of the ACC in section 12(1) and 59(7) of the ACC Act is correct. In the result, those directions having been made in relation to the examination of CB, he was effectively immunised from any direct or derivative use of the contents of his examination in his pending criminal trial.

Provided the knowledge of the proceedings in the Commission are adequately protected an accused person's entitlement to a fair trial in accordance with the adversarial process will be ensured. The situation is no different whether at the time of the Commission hearing a charge has not been laid or the criminal process has commenced. The right to a fair trial will only be compromised if information relevant to a person's defence in any form, including any derivative information, is available to the prosecution.

The primary judge determined that she was not bound by the decision of the Full Court of the Federal Court having formed the view that it was plainly wrong. In so doing her Honour referred to the decision of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89. Her Honour provides no specific reference to any statement in that decision to support this position. Her Honour also referred to, but provided no analysis of, a speech by Rares J, "The Role of the Intermediate appellate Court after Farah Constructions."

Farah Constructions concerned the authoritative reach of decisions of intermediate appellate courts as between those courts. Her Honour was not sitting as a member of such a court but was sitting as a trial judge in the NSW District Court exercising Federal jurisdiction. It seems to me that there would be profound difficulties in the proper functioning of the Australian judicial system if a District Court judge exercising Federal jurisdiction was free to decide that a decision of the Full Court of the Federal Court on the same issue is wrong, much less plainly wrong.

Of course, a judge of the District Court is bound by a decision of a single judge of the Supreme Court or a decision of the Court of Criminal Appeal or Court of Appeal on a point of law, given that the "administration of justice within the hierarchy of courts is an ordered discipline": Fleming v White [1981] 2 NSWLR 719 at 725-726.

However, the present position on that issue appears to be that in the joint judgment of the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 when Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:

"uniformity of decision in the interpretation of uniform national legislation ... is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that the interpretation is plainly wrong." (p 492)

See also Farah Constructions Pty Limited v Say-Dee Pty Limited at 151-152 [135].

Although the decision in Farah Constructions has generated some controversy the approach taken by the High Court to the task of an intermediate appellate court closely follows the approach which intermediate appellate courts must take to their own decisions. Similarly a trial judge may depart from the decision of another trial judge of the same court if satisfied that the decision is plainly wrong but must follow a decision of the intermediate appellate court to which its decision may be appealed. If as the High Court says there is a common law of Australia it would seem logical and to my mind irresistible that a trial judge of any court determining an issue under a statute of the Commonwealth should be bound to follow a decision of an intermediate appellate, state or Federal which has considered the same issue.

However, the resolution of this case does not depend upon whether her Honour was bound by OK. To my mind a finding that the decision of the majority in OK was plainly wrong was not open. I believe it was correct. The primary judge's reliance on Hammond does not sufficiently recognise the significance of the protections provided by the ACC Act which were not available to Hammond and which are central to the reasoning of the majority in OK.

The question of a stay

As I have previously indicated it is important to appreciate that the debate in the previous decisions where the relationship between a criminal prosecution and an administrative inquiry have been considered, including in OK, was whether the court should restrain the relevant inquiry. The cases have not been concerned with the issue determined by the trial judge and agitated in this Court as to whether the trial of an accused person who has been examined should be permanently stayed. To determine that question it is necessary to consider the principles most recently discussed by the High Court in Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23 and see also The Queen v Edwards [2009] HCA 20; 255 ALR 399; Dupas v The Queen [2010] HCA 20; 267 ALR 1 (Buddin J provided a comprehensive discussion of the principles in R v Smith (No 1) [2011] NSWSC 725). They do not seem to have been raised with her Honour.

The principles which a court must apply when considering an application for a permanent stay of a criminal trial derive from the "inherent power of courts to prevent abuses of their process" (Mason CJ, Jago at 25). Any process which will result in an unfair trial may be a relevant abuse. However "to justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial" of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences" (Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111).

The members of the court in Jago emphasised, in the words of Gaudron J, "the limited scope of the power to grant a permanent stay" (which) "necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. The purpose of the power "directs attention to the legal propriety of the process or proceedings as distinct from any broad consideration of the general merits of the case." (p 77) Gaudron J recognised that the decision as to whether or not to grant a permanent stay must be made recognising that a trial judge has a duty to ensure a fair trial and to that end "has a number of discretionary powers which may be exercised in the course of a trial" "the existence and availability of those powers, when considered in light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all various powers and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay" (p 77-78).

The primary judge emphasised, with reference to Walton v Gardiner [1993] HCA 77; 177 CLR 378 "that the power to grant a stay is not confined to cases where it has been demonstrated that any trial will necessarily be unfair." In Walton Mason CJ Deane and Dawson JJ with reference to Jago at pp519-520 said that "whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice" (p 395-396).

The primary judge recognised that there was no Australian precedent for the grant of a stay where the "integrity of the criminal justice process" has been undermined but there is no evidence of specific disadvantage to the accused." However, her Honour referred to two English cases R v Latif [1996] 1 WLR 104 and R v Grant [2005] 3 WLR 437 which she believed to be of significance.

In Latif Lord Steyn, who delivered a speech agreed in by the other members of the House of Lords, recognised that apart from the circumstance where a fair trial was not possible a court could stay proceedings where "there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed" (p 112).

Grant involved a prosecution when the police had intercepted communications between an accused and his solicitor which were the subject of legal professional privilege.

As I have previously indicated the primary judge determined that in the circumstances of the present case there had been "a serious interference with the administration of justice." Her Honour recognised that a stay is a discretionary remedy and identified as a matter justifying a stay that "a central purpose of the examination was to gather information in relation to the charges laid against the accused and his co-conspirators but Mr Ryan, the solicitor for the accused, was assured that the accused would not be questioned about matters directly related to the trial."

Beyond recognising "that there has been a serious interference with the administration of justice" reflected in the examination of the appellant "to gather information in relation to the charges" the primary judge did not approach the matter as the High Court in Jago would seem to me to require. The evidence, or rather the lack of it, did not enable her Honour to conclude that any questions had been asked or answered which required CB to disclose aspects of his defence to the charge. Her Honour did not identify whether there was any difficulty in the appellant receiving a fair trial and if there was, whether it could be remedied by orders made by the court either before or during the trial. An argument that prejudice could be assumed when it was not otherwise demonstrated by the evidence was rejected by the High Court in Jago (at 33; 72).

I have related the evidence of the witnesses as to the course of the examination. However, as I have indicated a transcript of the proceedings was not tendered to the primary judge, who in any event did not seem to be much interested in receiving it. Despite the issue being raised by the court during argument, the transcript was not tendered to this Court.

Although I accept that questions were asked of the appellant during his examination relating to matters relevant to the charges, accepting as I do that the majority decision in OK should be followed, provided the information obtained was effectively protected as the Commission acknowledged it should be, the mere fact that an examination has occurred could not justify a permanent stay. Even if, and the evidence does not establish this fact, it was the case that questions were asked which required the appellant to disclose his defence, this would not of itself have the consequence that the appellant would be denied "a fair trial." Only if it can be shown that either the relevant information has been, or there was a real risk that it would be communicated to the prosecution, could it be concluded that the exceptional step of granting a permanent stay should be taken.

That of course raises the issue of Mr Hussain who was present during the examination and took notes. He gave evidence that he has secured his notes and has not communicated their content to any other person. There is nothing to contradict his evidence and he was not challenged in relation to it. He could of course breach his obligation to maintain the secrecy of the examination room but there is nothing to suggest he has done so or would do so in the future.

Mr Hussain has had an involvement in the surveillance of other possible co-offenders and has for that reason been included on a prospective witness list for the trial. As I understand the position his evidence would be confined to "formal" matters proving the record of the surveillance. The concern expressed by the appellant is that his involvement in the prosecution, even to this limited extent, raises the possibility that he may knowingly, although more likely, unwittingly provide the prosecution with the benefit of knowledge he has gained during the examination.

It seems to me there are at least two answers to this submission. Firstly, Mr Hussain is not an investigator who is involved in the prosecution of the charges. His role is peripheral and there would appear to be no professional reason for him to breach his obligation to maintain the secrecy of the inquiry. Secondly, and perhaps of greater significance, without a transcript of the examination I could not conclude that anything was forthcoming during the examination which would be of assistance to the prosecution in any event. I accept that questions were asked about the circumstances of the alleged offences. However, it is reasonable to presume without contrary evidence that a great deal is presently known by the prosecutors. Without the transcript a judgment that because of questions that were asked or more particularly the answers that were given during the examination a conclusion that the appellant could not receive a fair trial is not possible.

I should indicate that I have not overlooked the role of Ms Austin in assisting the ACC and the primary judge's findings and criticism of her conduct. Having regard to the evidence to which I have earlier referred there are some uncertainties with respect to the content of the exchanges which occurred between Ms Austin and Mr Ryan.

The propriety of the conduct of an officer of the ACC is an important matter. Her Honour found, in effect, that an undertaking given on behalf of the ACC was breached. Even accepting her Honour's findings the evidence does not justify a permanent stay of the prosecution of either of the accused. Without more and, in particular evidence, that the administration of justice would be interfered with denying either accused a fair trial, there can be no justification in staying the prosecution.

It follows that the appeal by the Crown must succeed.

With respect to MP, he of course was not examined before the ACC. Subject to what was described as "one narrow possible exception" (CCA, T53, 27 July 2011), Mr Walker SC accepted that MP could not succeed if the Court allowed the DPP's appeal in the case of CB. Mr Walker SC developed a submission by reference to s 17 Evidence Act 1995 concerning compellability and associated defendants. The fact that an associated defendant of MP was examined before the ACC in the circumstances disclosed in this judgment does not demonstrate a proper foundation for the exceptional remedy of a permanent stay of criminal proceedings. In truth, MP's claim for a permanent stay derives from CB's position. For reasons contained in this judgment, the Crown must succeed in CB's case. MP's appeal should be dismissed.

I would make the following orders:

1. The appeal by the Director of Public Prosecutions is upheld.

2. The order granting a permanent stay to CB is quashed and the matter is remitted to the District Court for trial.

3. The appeal by MP is dismissed.

BUDDIN J: I agree with McClellan CJ at CL.

JOHNSON J: I agree with McClellan CJ at CL.

**********

Decision last updated: 23 October 2014

Medium Neutral Citation:	R v CB; MP v R [2011] NSWCCA 264
Hearing dates:	27 July 2011
Decision date:	09 December 2011
Before:	McClellan CJ at CL at [1] Buddin J at [137] Johnson J at [138]
Decision:	1. The appeal by the Director of Public Prosecutions is upheld. 2.The order granting a permanent stay to CB is quashed and the matter is remitted to the District Court for trial. 3. The appeal by MP is dismissed.
Catchwords:	CRIMINAL APPEAL - s5F Criminal Appeal Act 1912 (NSW) - permanent stay granted in District Court in respect of CB but not MP - possibility of contempt referral gives ACC standing - CB examined by ACC after being charged - information obtained in examination was not disclosed - not open for District Court judge to find decision in ACC v OK [2010] FCAFC 61 was plainly wrong - permanent stay not justified - Crown appeal successful - MP appeal dismissed.
Legislation Cited:	Australian Crime Commission Act 2002 (Cth) Criminal Code 1995 (Cth) Criminal Appeal Act 1912 (NSW) Evidence Act 1995
Cases Cited:	A v Boulton [2004] FCA 56; (2004) 204 ALR 598 ABC v Sage [2009] FCA 170;175 FCR 319 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Australian Competition and Consumer Commission v Telstra Corporation Ltd (2009) 176 FCR 203 Australian Crime Commission v OK [2010] FCAFC 61; [2010] 185 FCR 258 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 Barton v The Queen [1980] HCA 48; 147 CLR 75 at 111 CC v Australian Crime Commission [2005] FCA 754 Clough v Leahy (1904) 2 CLR 139 Commissioner of Police v Tanos (1958) 98 CLR 383 Commonwealth Superannuation Scheme Board of Trustees v Kitching (2004) 139 FCR 272 Dupas v The Queen [2010] HCA 20; 267 ALR 1 Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74;178 CLR 447 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Limited [2007] 158 FCR 325 Fleming v White [1981] 2 NSWLR 719 Hamilton v Oades [1989] HCA 21; 166 CLR 486 Hammond v The Commonwealth [1982] HCA 42 Insurance Exchange of Australasia v Dooley (2000) 50 NSWLR 222 Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23 Johns v Australian Securities Commission (1993) 178 CLR 408 Mansfield v Australian Crime Commission [2003] FCA 1059; (2003) 132 FCR 251 is Hak Song Ra v Australian Crime Commission [2004] FCA 416; (2004) 138 FCR 51, Loprete v Australian Crime Commission [2004] FCA 1476 McGuinness v AG of Victoria [1940] HCA 6; 63 CLR 73 Mortimer v Brown [1970] HCA 4; 112 CLR 493 NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456 OK v Australian Crime Commission [2009] FCA 1038; 259 ALR 507 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Latif [1996] 1 WLR 104 and R v Grant [2005] 3 WLR 437 R v MG [2007] NSWCCA 57; 69 NSWLR 20 R v Smith (No 1) [2011] NSWSC 725 Secretary, Department of Social Security v Lowe (1999) 92 FCR 26 Sorby v The Commonwealth [1983] HCA 10; 152 CLR 28 Stoddart v Boulton & Anor [2010] FCAFC 89 The Queen v Edwards [2009] HCA 20; 255 ALR 399 Victoria v Australian Building Construction Employees and Builders Labourers Federation [1982] HCA 31; 152 CLR 25 Walton v Gardiner [1993] HCA 77; 177 CLR 378 X v Australian Crime Commission [2004] FCA 1475; (2004) 139 FCR 413
Category:	Interlocutory applications
Parties:	CB (Respondent) MP (Appellant) The Crown (Appellant/Respondent)
Representation:	Counsel: K Chapple SC/D Lee (Cth Crown) Dr J F Bleechmore/N Steel (Respondent - CB) B Walker SC/G Thomas (Appellant - MP) N J Williams SC/M J O'Meara (Australian Crime Commission - applicant for leave to appeal) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Warren McKeon Dickson - Lawyers (Respondent - CB) Konstan Lawyers (Appellant - MP)
File Number(s):	2009/30770 (CB) 2009/47599 (CB) 2009/60449 (MP)
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-06-30 00:00:00 Before: Murrell DCJ File Number(s): DC 2009/30770 DC 2009/47599