R v Hutson

Case [2021] QDCPR 78

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Hutson [2021] QDCPR 78

PARTIES:

THE QUEEN

(Respondent)

v

HUTSON, JENNIFER JOAN

(Applicant)
FILE NO:

156/21
161/21

DIVISION:

Criminal

PROCEEDING:

Application

DELIVERED ON:

16 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2021

JUDGE:

Farr SC DCJ

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – where ASIC investigated suspected breaches of corporations legislation by the defendant – where ASIC compulsorily examined the defendant pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (‘s 19 examination’) – where ASIC’s s 19 examination of the defendant was adjourned and then subsequently resumed – whether s 19 ceases to have effect when it appears to ASIC that a person has committed an offence against corporations legislation and ought to be prosecuted but ASIC’s investigation of the matter is still ongoing – whether the prosecutorial stage had been reached when ASIC’s s 19 examination of the defendant occurred – whether s 19 examination of the defendant was unlawful – whether s 19 examination of the defendant was conducted for an improper purpose – whether s 19 empowers ASIC to indefinitely adjourn and then later resume a s 19 examination – whether ASIC’s record-keeping was so inadequate as to warrant a permanent stay of proceedings –– whether ASIC’s alleged investigatory failures constituted a fundamental defect which went to the root of the trial – whether there was an abuse of process – whether ASIC’s alleged investigatory failures give rise to an unacceptable forensic disadvantage to the defendant, such that the discretion to grant a permanent stay should be exercised

LEGISLATION:

Australian Securities and Investments Commission Act 2001 (Cth)

Australian Securities and Investments Commission Regulations 2001 (Cth)

Corporations Act 2001 (Cth)

Criminal Code (Qld)

New South Wales Crime Commission Act 1985 (NSW)

CASES:

A v Boulton (2004) 204 ALR 598, considered

ASIC v Elm Financial Pty Ltd (2004) 186 FLR 295, compared

ASIC v Plymin (No. 2) (2002) 170 FLR 120, considered

ASIC v Sigalla (No. 2) (2010) 271 ALR 164, applied

Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48, followed

Brewer (a pseudonym) v The Queen [2017] VSCA 117, considered

Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47, applied

CDPP v Leach (No. 3) [2020] QDC 42, considered

Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) CLR 447; [1993] HCA 74, followed

Hui Chi Ming v The Queen [1992] 1 AC 34, considered

Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46, applied

Johns v Australian Securities Commission (No. 2) (1992) 108 ALR 405, considered

Kennedy v Australian Securities and Investments Commission (2005) 218 ALR 224, applied

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, considered

Moti v The Queen (2011) 245 CLR 456; [2011]…

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R v Hutson [2021] QDCPR 78
Case
[2021] QDCPR 78
Decision Date

CaseChat Overview and Summary

The case of R v Hutson involved the Australian Securities and Investments Commission (ASIC) investigating suspected breaches of corporations legislation by the defendant. The legal issues that arose centred around the validity and conduct of ASIC's compulsory examination of the defendant under section 19 of the Australian Securities and Investments Commission Act 2001. Specifically, the court had to determine whether the examination was lawful, whether it was conducted for an improper purpose, and if ASIC's investigatory failures constituted a fundamental defect warranting a permanent stay of proceedings. The court also considered if ASIC's alleged investigatory failures led to an unacceptable forensic disadvantage to the defendant.

The court examined the statutory framework and found that section 19 of the ASIC Act allowed for compulsory examinations, but only when certain conditions were met, such as when ASIC believed an offence had been committed as a result of an investigation. The court concluded that the compulsory examination in this case was lawful because it occurred before ASIC had concluded its investigation and decided to prosecute. The court rejected the argument that section 19 ceased to apply once ASIC considered prosecution, emphasizing the need for a clear statutory expression and strict construction of any provision that restricts the right to silence. Additionally, the court found no evidence that the examination was conducted for an improper purpose or that ASIC's record-keeping was so inadequate as to warrant a permanent stay of proceedings.

In light of these findings, the application to permanently stay the proceedings was dismissed. The court held that ASIC's investigatory process, despite some flaws, did not result in an abuse of process or an unacceptable forensic disadvantage to the defendant that would justify a stay of proceedings. The court also noted that any deficiencies in the investigation could be addressed through cross-examination and jury directions, rather than a permanent stay.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is submitted that the particulars contained in the notice enabled her and her lawyers to perceive the general ambit of the subject matter of the investigation, and therefore complied with the requirements of s. 19(3). Relevant evidence On 6 May 2016, ASIC served the s. 19 notice on the applicant, requiring her to attend for examination by ASIC on oath or affirmation and to provide ASIC all reasonable assistance in connection with the investigation.[71] The preamble to the s. 19 notice stated that this requirement was made:“in relation to an investigation of suspected contraventions of ss. 184, 606, 671B and 1309 of the Corporations Act 2001 in relation to trading in the securities of Affinity Education Group Limited (“Affinity”) (ACN 163 864 195) between 2 July 2015 and 21 October 2015 and ss. 184 and 209 of the Corporations Act 2001 arising out of trading in the securities of Australia and New Zealand Banking Group Limited (“ANZ”) between 7 August and 9 September 2015…”[71]Email from Bastianon to Ashurst dated 6 May 2016 (Exhibit PMQ-04 to the Quinn Affidavit). The applicant was examined by ASIC on 25 May 2016. By email of 6 June 2016, ASIC advised her that it wished “to resume the examination…on Wednesday, 22 June 2016”. The examination “resumed” on that date. On that occasion, ASIC examined the applicant on the subject of the alleged attempt to pervert the course of justice. When asked at committal “what part of the investigation into those identified offences in the notice … was the resumption of the further examination dealing with”, Bastianon replied:“Again, without seeing the transcript, I assume that we covered those – some or all of those suspected offences. 606 wouldn’t have been covered, because that was not in contemplation; 671B, no, because that’s really covered by the s. 1309 offences; s. 84, yes; and then, of course, the attempt to pervert the course of justice – we would have covered that.”[72][72]Committal transcript, Day 7 – 21. Paleologos gave, in substance, the same evidence. He agreed that during the 22 June 2016 examination there was “sustained questioning about what were suggested to be improper approaches or conversations between the applicant and other persons who had been, or were expected to be, examined by ASIC.”[73]He agreed that the “purpose of that questioning was directed to the issue of whether the applicant may have committed an offence of or similar to attempting to pervert the course of justice”.[74][73]Committal transcript, Day 7 – 65.[74]Committal transcript, Day 7 – 66.Consideration Section 19(3) provides, inter alia, that a s. 19 notice must “state the general nature of the matter referred to in sub-section (1)”. There is no explicit requirement that a particular offence or offences be identified. In Johns v Australian Securities Commission (No. 2) (‘Johns’),[75] Black CJ and von Doussa J stated:“A matter into which investigation is made under s. 13 will be the possible contravention of a specific law and a proper description of that matter in a notice given under s. 19 will usually include a reference to that law.”[75](1992) 108 ALR 405 at 406.

Decision

Reasons for decision

That was a situation much removed from the position in this matter. Factors identified by the applicant in this matter such as sloppy record-keeping or changes in witness’ testimony over time, are factors which are regularly dealt with by way of cross- examination of the investigators and relevant witnesses and may result in directions to the jury to overcome any unfair prejudice.[91][91]See R v Dubois (No. 9) [2016] QSC 327 at [22] – [24], [44] and [45].Conclusion The applicant has not demonstrated that the s. 19 examination was conducted unlawfully or for an improper purpose. The displacement of the accusatorial process in so far as both the May and June examinations are concerned was permitted by the ASIC Act. No failing has been identified that would render the proceedings “unfair and unjustifiably oppressive” such as to constitute an abuse of process.[92][92]Walton v Gardiner (1993) 177 CLR 378 at 392; [1993] HCA 77. Accordingly, the application is dismissed.

Ratio Decidendi

Legal Principle Established

The respondent also notes that, whilst the applicant has placed significant weight on the evidence given by Paleologos, that, at the time of the examinations, he believed ASIC’s view was that the application ought to be prosecuted,[50] it must be remembered that he also made it clear that ASIC were intending to refer a brief to the CDPP before the charges were commenced[51] and that he believed the examinations were authorised as there were still some “enquiries to make”.[52][50]Committal transcript, Day 7 – 63, ll 8 – 10.[51]Committal transcript, Day 7 – 60, l 40.[52]Committal transcript, Day 7 – 62, ll 30 – 36.Consideration There is no dispute between the parties that if s. 49 had application at the time of the examinations, then the applicant could not have been lawfully compulsorily examined pursuant to s. 19.[53][53]Committal transcript, pp. 1 – 61, l 25 – pp. 1 – 62, l 11. The question for determination is whether, at the time of the examinations, s. 49(4) had application, that is, that “as a result of an investigation, it appeared to ASIC that the applicant may have committed an offence against the corporations legislation and ought to be prosecuted for the offence”. That is a question of fact, although it may also involve the determination of a question of law when deciding it. For the purposes of this decision, I will infer that Bastianon and Paleologos are each ASIC delegates pursuant to s. 102(1) of the ASIC Act. I note that there is evidence that Caridi is such a delegate.[54] No submissions were made on this issue, but it seems to me, adopting an approach most favourable to the applicant ie: that Bastianon and Paleologos and, to a lesser extent Caridi, constituted the eyes, ears and thoughts of ASIC for the purposes of this matter, is appropriate. It would be an affront to justice if ASIC were able to claim that it did not hold the view identified in s. 49(1) simply because the principal investigators in the matter, who were not delegates, had kept their views to themselves thus allowing ASIC to avoid the protective effect of s. 49(4). And to be clear, I note that this application has been effectively conducted on this inferred basis.[54]Affidavit of Matthew Bastianon sworn 20 August 2021 at [11]. The applicant has argued that s. 49(1) has application when it appears to ASIC that a person may have committed an offence against the corporations legislation and ought to be prosecuted for the offence. The applicant has submitted, that when that stage is reached, s. 19 no longer has relevance. That argument however, overlooks the requirement that, for s. 49(1) to apply, that position must be reached “as a result of an investigation”. There can be no doubt that s. 19 authorises a fundamental alteration to the accusatorial process - that is, a suspect’s right to silence. The High Court has regularly stressed that the accusatorial process is protected from alteration by the principle of legality:[55]“Inasmuch, however, any restriction on the right to silence pro tanto a denial of liberty, the rule of law, and in particular the principle of legality, mandates that any statutory provision that purports to restrict the common law right to silence must be perspicuously expressed and strictly construed.”[55]Strickland at [101], noting the authority cited at footnote 97.