R v Macdonald; R v Maitland (No 5)

[2016] NSWSC 865

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Macdonald; R v Maitland (No 5) [2016] NSWSC 865
Hearing dates:	15 June and 17 June 2016
Decision date:	23 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Adamson J
Decision:	(1) Notice of motion filed in court on behalf of Mr Maitland on 9 May 2016 dismissed.  (2) Notice of motion filed on behalf of Mr Macdonald on 16 May 2016 dismissed.
Catchwords:	CRIMINAL LAW – application for stay of trial – applicants charged with criminal offences following finding of corrupt conduct by Independent Commission Against Corruption (ICAC) – Director of Public Prosecutions (DPP) downloaded transcripts from public inquiry from ICAC’s website, which contained the applicants’ compelled evidence – DPP and others involved in prosecution read compelled evidence before formulating charges against accused – companion principle and privilege against self-incrimination can be affected if legislative intention is clear – duty of law enforcement officers, including ICAC, to provide DPP with information assisting prosecution or defence except where privileged or covered by immunity – privileges abrogated by ICAC Act and compelled evidence made public – compelled evidence, whilst inadmissible in trial, can be used by DPP for purposes of prosecution at least where given or tendered in public  CRIMINAL LAW – application for permanent stay of trial – permanent stay only granted in exceptional circumstances – where potential unfairness can be remedied temporary stay may be granted or evidence excluded – potential prejudice identified contemplated and permitted by statute – no unlawful prejudice – application dismissed CRIMINAL LAW – principles of accusatorial system of criminal justice – principle that prosecution must discharge onus of proof and cannot compel accused to assist – evidence taken under compulsion before charges were laid – analysis of principles in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92; Lee v The Queen [2014] HCA 20; 253 CLR 455 and R v OC (Oliver Curtis)[2015] NSWCCA 212; 90 NSWLR 134 – objects and purpose of ICAC Act – disclosure of compelled evidence permitted by and part of purpose of ICAC Act – evidence inadmissible in trial but can be used by prosecution – no evidence compelled from accused after charges laid
Legislation Cited:	Australian Crime Commission Act 2002 (Cth), ss 25A, 28, 30 Australian Securities and Investment Commission Act 2001 (Cth), ss 13, 17, 18, 19, 49, 63, 64, 68, 76 Crime Commission Act 2012 (NSW), s 80 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW), ss 3, 14, 14A, 128, 173 Director of Public Prosecutions Act 1983 (Cth), s 9, 12 Director of Public Prosecutions Act 1986 (NSW), ss 7, 15A Independent Broad-based Anti-Corruption Commission Act 2011 (Vic), s 70 Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8, 9, 13, 14, 16, 17, 18, 21, 22, 26, 30, 31, 35, 37, 38, 53, 73, 74, 74A, 74B, 87, 111, 112 Mining Act 1992 (NSW) New South Wales Crime Commission Act 1985 (NSW), ss 13, 16 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Australian Securities Commission v Bell (1991) 32 FCR 517 D’Amore v Independent Commission Against Corruption [2013] NSWCA 187 Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 Environment Protection Authority v Caltex Refining Co. Pty Ltd (1993) 178 CLR 477 Hammond v The Commonwealth (1982) 152 CLR 188 Independent Commission Against Corruption v Cunneen [2015] HCA 14; 89 ALJR 475 Jago v The District Court of New South Wales (1989) 198 CLR 23 Lazarus v Director of Public Prosecutions [2015] NSWCA 47 Lazarus v Director of Public Prosecutions [2015] NSWSC 1116 Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 Lee v The Queen [2014] HCA 20; 253 CLR 455 Potter v Minahan [1908] HCA 63; 7 CLR 277 R v Edwards [2009] HCA 20; 83 ALJR 717 R v Independent Broad-based Anti-Corruption Commissioner [2016] HCA 8; 90 ALJR 433 R v OC (Oliver Curtis) [2015] NSWCCA 212; 90 NSWLR 134 Redacted Judgment [2015] NSWCCA 281 Rogan v Hyde (1995) 84 A Crim R 519 TS v R [2014] NSWCCA 174 United States v Fisher 6 US 358 (1805) X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 X7 v R [2014] NSWCA 273; 292 FLR 57
Category:	Procedural rulings
Parties:	Regina Ian Michael Macdonald John William Maitland
Representation:	Counsel: N Williams SC / J Davidson (Crown) S Odgers SC (Accused Macdonald) D Jordan SC/ E Kerkyasharian (Accused Maitland)   Solicitors: Solicitor for Public Prosecutions (Crown) Bilbie Dan Solicitors (Accused Macdonald) Bob Whyburn Solicitor (Accused Maitland)
File Number(s):	2015/599402015/59990

Judgment

Introduction

1. Ian Macdonald is due to stand trial on indictment of two charges of misuse of public office. John Maitland is due to stand trial on indictment of two charges of aiding abetting counselling and procuring that offence.

2. By notice of motion filed in court on 9 May 2016 Mr Maitland seeks a permanent stay of his criminal proceedings. In the alternative, he seeks a temporary stay until any person who has access to evidence compelled from Mr Maitland in the inquiry conducted by Independent Commission Against Corruption (ICAC) is no longer involved in his prosecution. Mr Maitland no longer presses his claim that the evidence of the following witnesses be excluded on the basis that their witness statements were prepared after his compelled evidence in ICAC was disclosed to the Director of Public Prosecutions (DPP): Nathan Rees, Michael Costa, Brad Mullard, Alan Coutts, Richard Sheldrake, Patricia Madden, Sue-Em Tan, Richard Jones, Brendan McPherson, Anthony Maher, Jason Bartlett, Nicole Williams, Nicholas Papallo, Luke Foley, Paul Bastian, Jamie Gibson, James Chisholm, Michael Buffier, Peter Coates, Paul Healy, Gary Gibson and Archibald Tudehope.

3. However, Mr Maitland, in final address, sought an order that the evidence of these witnesses (which had been taken by persons who had had access to the evidence compelled from the applicants) could not be used. The effect of such an order would be that the process of preparing admissible evidence from such witnesses would have to begin again and be undertaken by persons who had not had access to the evidence compelled from the applicants.

4. By notice of motion filed on 16 May 2016 Mr Macdonald seeks orders in similar terms. Mr Macdonald made corresponding amendments to the relief sought as those made by Mr Maitland. The Crown opposes the orders sought.

5. Mr Maitland and Mr Macdonald (the applicants) contended that a permanent stay was warranted on the ground that the present trial cannot be conducted in accordance with the accusatorial system of criminal justice since the DPP himself, Mr Walkowiak and Mr English had been privy to their compelled evidence and retain a role in their prosecution. They submitted that knowledge of their compelled evidence was of assistance to the DPP himself, his staff and counsel briefed, not only in formulating charges but also in gathering evidence for the prosecution case. In the alternative, they submitted that there should be a temporary stay of these criminal proceedings to ensure that no person who has had access to evidence compelled from them in ICAC over their objection is involved in the conduct of the prosecution any no evidence prepared by such persons is used.

6. The Crown contended that the applicable statutory provisions authorised (and indeed required) such disclosure as was made. It also submitted that the so-called “companion principle” (that the prosecution cannot compel an accused person to assist in the discharge of its onus of proof) was not engaged until the applicants were actually charged, which occurred after their compelled evidence was provided by ICAC to the DPP. No further evidence was compelled from the applicants after they were charged and, accordingly, no breach of the companion principle occurred. Further, the Crown submitted that the lawyers involved in the prosecution case who had read the compelled evidence had done so solely for the purpose of advising the DPP whether charges should be laid, including charges contrary to s 87 of the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act). They had little recall of the compelled evidence and had not, in any event, had resort to such evidence in the preparation of the prosecution case. Accordingly any prejudice was speculative and had not been established. The Crown also relied on the artificiality of requiring material which had entered the public domain (through the public inquiry itself and the posting of the transcripts on the internet through ICAC’s website) to be kept from the DPP and anyone involved in the prosecution of the applicants.

7. The submissions of the parties will be set out in more detail below after the relevant statutory provisions are addressed.

The relevant statutory provisions

8. The questions whether, and to what extent, Parliament has authorised the compelled evidence to be disclosed to the DPP (and for what purpose) and whether it has abrogated the privilege against self-incrimination or affected the companion principle, are to be determined, largely, if not wholly, by reference to the relevant statutory provisions. Accordingly, it is necessary to address the legislation in some detail, including the statutory provisions which have been considered in the authorities relied upon.

Independent Commission Against Corruption Act 1988 (NSW)

9. The principal objects of the ICAC Act are to constitute ICAC as an “independent and accountable body” “to investigate, expose and prevent corruption involving or affecting public authorities and public officials” as well as to “educate public authorities, public officials and members of the public about corruption”: s 2A.

10. Part 3 deals with “corrupt conduct”. Section 8 defines corrupt conduct in very broad terms. Section 9 provides that, despite s 8, conduct does not amount to corrupt conduct unless it could constitute or involve any one of four identified matters, one of which is a criminal offence (s 9(1)(a)).

11. The effect of the ICAC Act is that a finding of corrupt conduct on the basis of s 9(1)(a) requires ICAC to be satisfied that the person has engaged or is engaging in conduct that constitutes or involves an offence: s 13(3A) and D’Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [215] per Basten JA. Such a finding is not to be included in a report to Parliament under s 74: s 74B. It is not a finding that a person is guilty of, or has committed, is committing or is about to commit, a criminal offence: s 74B(2)(b).

12. Section 13(1) makes provision for ICAC’s “principal functions”, which include investigating conduct alleged to be corrupt; and communicating the results of its investigations to “appropriate authorities”. Section 13(3) provides that ICAC’s principal functions “also include”:

(a) the power to make findings and form opinions, on the basis of the results of its investigations, in respect of any conduct, circumstances or events with which its investigations are concerned, whether or not the findings or opinions relate to corrupt conduct, and

(b) the power to formulate recommendations for the taking of action that the Commission considers should be taken in relation to its findings or opinions or the results of its investigations.

13. Section 13(5) relevantly provides:

The following are examples of the findings and opinions permissible under subsection (3) but do not limit the Commission’s power to make findings and form opinions:

. . .

(b) opinions as to:

(i) whether the advice of the Director of Public Prosecutions should be sought in relation to the commencement of proceedings against particular persons for criminal offences against laws of the State . . .

14. Section 14 empowers ICAC to gather and furnish to the DPP evidence that may be admissible in the prosecution of a criminal offence in connection with corrupt conduct: s 14(1)(a) and (a1).

15. Section 16(1) provides that, in exercising its principal functions relating to investigation of conduct, ICAC shall, as far as practical, work in co-operation with law enforcement agencies, and may work in co-operation with named bodies (including the Auditor-General and the Australian Crime Commission), as well as “such other persons and bodies as the Commission thinks appropriate”. Section 16(2) provides that, in exercising its other principal functions, ICAC shall “as far as practicable” work in co-operation with named bodies (including the Auditor-General and the Australian Crime Commission), as well as “such other persons and bodies as the Commission [ICAC] thinks appropriate”. The term “law enforcement agencies” is defined by s 16(5) and does not include the DPP.

16. Section 17 relevantly provides:

17 Evidence and procedure

(1) The Commission is not bound by the rules or practice of evidence and can inform itself on any matter in such manner as it considers appropriate.

(2) The Commission shall exercise its functions with as little formality and technicality as is possible, and, in particular, the Commission shall accept written submissions as far as is possible and compulsory examinations and public inquiries shall be conducted with as little emphasis on an adversarial approach as is possible.

17. Section 18(1) provides that ICAC may continue with its investigations despite any proceedings that may be before any court. The balance of s 18 provides:

(2) If the proceedings are proceedings for an indictable offence and are conducted by or on behalf of the Crown, the Commission must, to the extent to which the Commission thinks it necessary to do so to ensure that the accused’s right to a fair trial is not prejudiced:

(a) ensure that, as far as practicable, the investigation is conducted in private during the currency of the proceedings, and

(b) give directions under section 112, having effect during the currency of the proceedings, and

(c) defer making a report to Parliament in relation to the investigation during the currency of the proceedings.

(2A) Subsection (2) does not apply:

(a) (in the case of committal proceedings) before the commencement of the committal hearing, that is, the commencement of the taking of the evidence for the prosecution in the committal proceedings, and

(b) (in any other case) after the proceedings cease to be proceedings for the trial of a person before a jury.

(3) This section has effect whether or not the proceedings commenced before or after the relevant investigation commenced and has effect whether or not the Commission or an officer of the Commission is a party to the proceedings.

18. Section 21 empowers ICAC, by notice, to require a public official or authority to provide a statement of information. Section 22 empowers ICAC by notice to require a person (whether or not a public official) to produce documents. Section 26 applies to such requirements and relevantly provides:

(2) If the statement, document or other thing tends to incriminate the person and the person objects to production at the time, neither the fact of the requirement nor the statement, document or thing itself (if produced) may be used in any proceedings against the person (except proceedings for an offence against this Act or except as provided by section 114A (5)).

(3) They may however be used for the purposes of the investigation concerned, despite any such objection.

19. Section 30 confers power on ICAC to conduct compulsory examinations, which are to be conducted in private. Section 31 empowers ICAC to conduct a public inquiry for the purposes of an investigation “if it is satisfied that it is in the public interest to do so”. A public inquiry is to be held in public: s 31(8). Section 35(1) provides that ICAC may summon a person to give evidence or produce documents.

20. Section 37 abrogates all relevant privileges, including the privilege against self-incrimination in that it, by s 37(2), provides that a person is not excused from answering a question or producing a document at a compulsory examination or a public inquiry “on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground”. Section 37(3) provides that an answer made by a person in either a compulsory examination or public inquiry is not admissible against that person in civil, criminal or disciplinary proceedings if objection is taken. Such objections can be covered by a general declaration made by the Commissioner or person presiding: s 38.

21. Section 37(4) provides:

(4) Nothing in this section makes inadmissible:

(a) any answer, document or other thing in proceedings for an offence against this Act or in proceedings for contempt under this Act, or

(b) any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (2), or

(c) any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

22. Section 53 provides for “Referral of matter” in the following terms:

(1) The Commission may, before or after investigating a matter (whether or not the investigation is completed, and whether or not the Commission has made any findings), refer the matter for investigation or other action to any person or body considered by the Commission to be appropriate in the circumstances.

(2) The person or body to whom a matter is referred is called in this Part a relevant authority.

(3) The Commission may, when referring a matter, recommend what action should be taken by the relevant authority and the time within which it should be taken.

(4) The Commission may communicate to the relevant authority any information which the Commission has obtained during the investigation of conduct connected with the matter.

(5) The Commission shall not refer a matter to a person or body except after appropriate consultation with the person or body and after taking into consideration the views of the person or body.

(6) If the Commission communicates information to a person or body under this section on the understanding that the information is confidential, the person or body is subject to the secrecy provisions of section 111 in relation to the information.

23. Section 73 relevantly provides that both Houses of Parliament may, by resolution of each House, refer to ICAC any matter referred to in s 13 and, in that event, ICAC has a duty to “fully investigate” the matter.

24. Section 74A relevantly provides:

Content of reports to Parliament

(1) The Commission is authorised to include in a report under section 74:

(a) statements as to any of its findings, opinions and recommendations, and

(b) statements as to the Commission’s reasons for any of its findings, opinions and recommendations.

(2) The report must include, in respect of each “affected” person, a statement as to whether or not in all the circumstances the Commission is of the opinion that consideration should be given to the following:

(a) obtaining the advice of the Director of Public Prosecutions with respect to the prosecution of the person for a specified criminal offence,

. . .

25. Section 87(1) provides that a person who, at a compulsory examination or public inquiry conducted by the Commission, gives evidence that is false or misleading in a material particular knowing it to be false or misleading, or not believing it to be true, is guilty of an indictable offence.

26. Section 111 imposes secrecy requirements on officers of ICAC or legal practitioners who have assisted ICAC.

27. Section 112 provides that ICAC may direct that any evidence before it, submissions, or the fact of the giving of evidence not be disclosed, but only if it is satisfied that such a direction is necessary or desirable in the public interest.

Director of Public Prosecutions Act 1986 (NSW)

28. Section 7(1) of the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act) provides that the principal functions and responsibilities of the Director include the institution and conduct of prosecutions on behalf of the Crown in this Court and in the District Court.

29. Section 15A(1) of the DPP Act imposes on “law enforcement officers” (which are defined to include ICAC officers) a duty to disclose to the DPP “all relevant information, documents, or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person”. This duty arises whenever the DPP exercises any function under the DPP Act with respect to the prosecution of the offence (s 15A(1A) and continues until the prosecution is terminated, a verdict is entered or the DPP decides not to prosecute. Section 15A(5) provides that the duty imposed by the section is “in addition to any other duties of law enforcement officers in connection with the investigation and prosecution of offences”. Section 15A further provides:

(6) The duty imposed by this section does not require law enforcement officers to provide to the Director any information, documents or other things that are the subject of a claim of privilege, public interest immunity or statutory immunity. The duty of a law enforcement officer in such a case is to inform the Director of:

(a) the existence of any information, document or other thing of that kind, and

(b) the nature of that information, document or other thing and the claim relating to it.

(7) However, a law enforcement officer must provide to the Director any information, document or other thing the subject of a claim of privilege, public interest immunity or statutory immunity, if the Director requests it to be provided.

(8) The duty imposed by this section does not require law enforcement officers to provide to the Director any information, document or other thing if to do so would contravene a statutory publication restriction. The duty of a law enforcement officer in such a case is to inform the Director of the following, but only to the extent not prohibited by the statutory publication restriction:

(a) the existence of any information, document or other thing of that kind,

(b) the nature of that information, document or other thing.

Criminal Procedure Act 1986 (NSW)

30. Until 24 November 2015, the Criminal Procedure Act 1986 (NSW) authorised ICAC officers (who are, by s 3, “public officers”) to commence proceedings pursuant to s 14 (which provides for “common informers”) and s 173 (which provides for commencement of proceedings by a police officer or public officer): Lazarus v Director of Public Prosecutions [2015] NSWSC 1116 at [81]-[85] per Garling J; leave to appeal refused in Lazarus v Director of Public Prosecutions [2015] NSWCA 47, per Basten JA at [10]-[12], Ward JA agreeing.

31. The authority of ICAC officers to commence proceedings was subsequently limited by s 14A, which was inserted into the Act and became operative on 24 November 2015. Section 14A provided that an ICAC officer does not have power to commence proceedings for an offence unless the DPP has advised ICAC that proceedings may be commenced by an officer of ICAC. Section 14A(2) provides that “for that purpose” the DPP may liaise with ICAC but “is to act independently in deciding to advise that proceedings for the offence may be commenced”.

Australian Crime Commission Act 2002 (Cth)

32. The Australian Crime Commission Act 2002 (Cth) (the ACC Act) is presently relevant because its provisions were considered by the High Court in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92.

33. Section 28(1) of the ACC Act provided that an examiner appointed by the Australian Crime Commission (ACC) under the Act could summon a person to appear at an examination to give evidence. Section 30(2)(b) required the person to answer questions at an examination and s 30(6) made it an indictable offence for a person to refuse or fail to answer such a question. Section 25A relevantly provided:

(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.

New South Wales Crime Commission Act 1985 (NSW)

34. The New South Wales Crime Commission Act 1985 (NSW) (NSWCC Act), although repealed, is relevant to the present application because of the reliance placed by the applicants on Lee v The Queen [2014] HCA 20; 253 CLR 455. The Act established the New South Wales Crime Commission (NSWCC). Its principal object was to reduce the incidence of illegal drug trafficking. A secondary object was to reduce the incidence of organised crime. The Act provided that these objects were to be pursued by the investigation of matters relating to criminal activity and the assembling of admissible evidence to be provided to the relevant authorities.

35. Of present relevance, s 13(9) of the NSWCC Act provided:

The Commission may direct that:

(a) any evidence given before it,

(b) the contents of any document, or a description of any thing, produced to the Commission or seized pursuant to a search warrant issued under section 11,

(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d) the fact that any person has given or may be about to give evidence at a hearing,

shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall 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.

36. Section 16(1) of the NSWCC Act conferred power on a member of the NSWCC to summon a person to give evidence. Section 18B(1) provided that a person summoned to appear as a witness was not excused from answering any question on the ground that the answer could incriminate or tend to incriminate him or her, or on any other ground.

Australian Securities and Investment Commission Act 2001 (Cth)

37. The Australian Securities and Investment Commission Act 2001 (Cth) (the ASIC Act) is relevant to the present application because of the reliance placed by the Crown on R v OC (Oliver Curtis) [2015] NSWCCA 212; 90 NSWLR 134. Section 13 of the ASIC Act empowers ASIC to investigate matters where it has reason to suspect a contravention of relevant legislation. Section 19 of the ASIC Act provided that the Australian Securities and Investment Commission (ASIC) could carry out an examination in connection with an investigation under s 13 if it has reasonable grounds to suspect a contravention of specified provisions. Under s 17, ASIC can prepare a report of the investigation. In the case of an investigation relating to a serious contravention of the law, ASIC is empowered by s 18 to give a copy of the report to the Commonwealth Director of Public Prosecutions (CDPP).

38. Section 49 provides that ASIC has investigatory and prosecutorial roles and can take the record of the examination into account in considering whether a person has committed an offence and, in these circumstances, may cause a prosecution to be commenced or carried on. Section 63 of the ASIC Act makes it an offence to decline to answer a question in an examination without reasonable excuse. Section 64 makes it an offence to give false or misleading evidence at an examination. Section 68(1) provides that it is not a reasonable excuse that the answer might tend to incriminate the person. Section 68(3) provides that the statement is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than a proceeding for the making of a false statement. Section 76 of the ASIC Act provides that a statement made in an examination is admissible in evidence against the examinee unless a claim for privilege is made before making the statement and the statement might tend to incriminate the examinee.

39. The Director of Public Prosecutions Act 1983 (Cth) (CDPP Act) is also relevant to the ASIC Act since it provides, by s 9(5), that the CDPP may take over proceedings for committal for an indictable offence instituted by another person. Section 12 of the CDPP Act provides that when a prosecution is being carried on by a person other than the CDPP and the CDPP informs that person that the CDPP is considering taking over the prosecution, or takes over the prosecution, the person must provide to the CDPP a copy of all witness statements and each material document as well as “such other information or material” as the CDPP requires.

The facts

40. On 23 November 2011 both Houses of Parliament, pursuant to s 73 of the ICAC Act, referred for investigation by ICAC, the circumstances surrounding the application for, and the allocation of an Exploration Licence to Doyles Creek Mining Pty Ltd (DCM) under the Mining Act 1992 (NSW) and related issues.

41. As a result of the referral, ICAC conducted an investigation, known as Operation Acacia. In the course of the investigation, Mr Maitland and Mr Macdonald gave evidence over objection at separate compulsory examinations on 13 July 2012. ICAC conducted public hearings as part of Operation Acacia, which commenced on 18 March 2013 and ran for 37 hearing days to 17 May 2013.

42. Mr Maitland gave evidence over objection on 8, 9 and 10 May 2013 (amounting to 500 pages of transcript). Four excerpts from his compulsory examination were also tendered. Mr Macdonald gave evidence on 15, 16 and 17 May 2013 (amounting to more than 250 pages of transcript), also over objection. Five excerpts of his compulsory examination were also tendered. Commissioner Ipp made declarations pursuant to s 38 of the ICAC Act in relation to the objections made by the applicants, which had the effect that all their answers were taken to have been objected to.

43. The transcripts of the evidence of Mr Maitland and Mr Macdonald at the public inquiry were published on the ICAC website, in accordance with ICAC’s usual practice of uploading transcript to the website at the end of each day of the public inquiry, or on the following day.

44. In August 2013 ICAC published its report of Operation Acacia (the ICAC Report). It recommended that the advice of the DPP be sought with respect to the prosecution of the applicants and others. The ICAC Report contained the following public disclosure:

There was evidence before the Commission of the financial benefits accrued by Mr Maitland and two other persons as a result of the corrupt conduct the Commission has found to have been engaged in by Mr Macdonald. The Commission has provided relevant information to the New South Wales Crime Commission pursuant to s 16(3) of the ICAC Act for such action as the New South Wales Crime Commission considers appropriate.

45. In about August 2013 Phillip English of counsel was briefed by the NSWCC to provide legal advice in relation to matters arising from the ICAC Report in relation to the referral to the NSWCC. For that purpose, he read parts of the transcript of ICAC’s public inquiry, to which he obtained access from ICAC’s public website and which he downloaded to his iPad. He was also briefed with hard copy materials and a disc, although he was not aware of this happening and did not refer to them. Once he became aware, on 23 May 2016, that he had such materials in his chambers he arranged for the material to be collected by the DPP that same day. On 21 May 2016 he deleted from his iPad electronic copies of the transcripts of the applicants’ evidence before the public inquiry which had remained on this device since he first downloaded them for the purposes of his first brief.

46. On 3 April 2014, Lee v The Queen was argued in the High Court. Judgment was delivered on 21 May 2014.

47. In about June 2014 Adrian Walkowiak was transferred from another area of the DPP’s office to the ICAC Referrals Unit, where he became the solicitor with carriage of the present matter. As far as Mr Walkowiak knew, a file for the matter had already been opened although Daniel Noll, the then Managing Lawyer of the DPP’s ICAC Referral Unit, had not allocated the matter to a solicitor before it was allocated to Mr Walkowiak. Between June and October 2014, Mr Walkowiak read transcripts of the applicants’ evidence in the public inquiry as well as exhibits tendered in the public inquiry, which included extracts from their evidence in compulsory examinations. He was provided with this material in electronic form but he also printed it (together with other material provided by ICAC) in hard copy. Mr Walkowiak considered this material for the purpose of preparing advice to the DPP and highlighted portions and made notes.

48. On 23 June 2014 Mr Noll downloaded the entire public inquiry transcript from the ICAC website for Operation Acacia to the “CASES system” (an internal DPP server).

49. On 24 June 2014 Keith Alder, Deputy Director of Public Prosecutions, was provided with an internal recommendation from a solicitor within the DPP’s office who has not had any role in the prosecution of Mr Macdonald for misconduct in public office or the prosecution of Mr Maitland for accessory before the fact to misconduct in public office. The advice did not relate to the charge against Mr Maitland of accessory before the fact to misconduct in public office. The recommendation attached an advice which set out extracts from the transcripts of Mr Maitland’s private compulsory examination on 13 July 2012 and from his public examination on 7 May 2013. This recommendation and advice was passed onto Lloyd Babb SC, the DPP, on 24 June 2014, who read the recommendation and advice at about that time and has not re-read it since.

50. In about June 2014, Mr English was briefed by the DPP in connection with a potential prosecution of the applicants. Not long after receiving the brief, he went to England to visit his father. While he was away he read the transcripts of ICAC’s public inquiry into Operation Acacia on his iPad. Although he does not specifically recall reading the applicants’ compelled evidence in this period, he accepted that he may have done.

51. In about July or August 2014 Mr English returned to Australia from England. Shortly afterwards, he met with his then leader, Mr Fagan SC (now Fagan J), who told him that he should make sure that he did not access the applicants’ compelled evidence or raise any aspect of their evidence either with Mr Fagan himself, or with any potential witnesses or any other member of the prosecution team. I accept Mr English’s evidence that he was very careful not to refer to the compelled evidence or to let the compelled evidence influence or assist him in the prosecution of the applicants in the present proceedings (although he accepted that he could not rule out subconscious effects). A warning to similar effect was reiterated to Mr English by Peter Neil SC, when he was briefed as lead counsel following Mr Fagan’s appointment.

52. In about 20 September 2014 Mr Fagan and Mr English provided a formal written advice to the DPP concerning potential charges against Mr Maitland, including accessorial liability for offences committed by Mr Macdonald.

53. Mr Walkowiak provided written advice to Mr Babb on 7 October 2014. The subject matter of this advice included possible charges against Mr Macdonald for misconduct in public office as well as charges under s 87 of the ICAC Act for giving false evidence to ICAC. It contained substantial extracts from Mr Macdonald’s statements in the public inquiry on 15 May 2013 and 16 May 2013 and contained reference to his compulsory examination on 13 July 2012 (any disparity between which was relevant to the possible charge under s 87 of the ICAC Act). Mr Walkowiak accepted that the extracts were not only relevant to the possible charge under s 87, since they were also potentially relevant to the charge of misconduct in public office. Since providing this advice Mr Walkowiak has retained a copy of the advice and the material referred to above, which he read for the purposes of preparing it, although he has not re-read or consulted it (or the notes he made while reading it) since, or shortly after, providing that advice. I accept his evidence that the advice of 7 October 2014 did not contain extracts of portions of, or otherwise refer to, Mr Maitland’s evidence at the public inquiry.

54. Mr Babb read Mr Walkowiak’s advice on about 7 October 2014. Mr Babb did not re-read this advice for the purpose of considering whether to commence proceedings against Mr Macdonald for misconduct in public office.

55. On the following day, 8 October 2014, Mr Walkowiak raised a requisition with ICAC in the following terms:

“Invitation list to Maitland’s farewell at parliament house (according to Braham’s XX [cross-examination] of Maitland, Macdonald and Hickey were the only state Labor MPs to be invited)”

56. This was the only one of very many requisitions (things to be done to get the case ready) sent by Mr Walkowiak to ICAC which made any reference to any part of the applicants’ compelled evidence before ICAC. Mr Walkowiak noted the response to the requisition (which referred to a document in volume 10, page 2985 of the public inquiry brief which was served by the DPP on the applicants) but did not recall doing anything further in relation to it.

57. On 5 November 2014 the DPP advised ICAC that there was sufficient evidence to prosecute Mr Macdonald for two offences of misconduct in public office and Mr Maitland for two offences of accessory before the fact to misconduct in public office. I accept Mr Babb’s evidence that he did not take into account the evidence compelled from the applicants in relation to the present charges (since it was inadmissible) but did take into account their compelled evidence when deciding whether there was sufficient evidence to bring charges under s 87 of the ICAC Act.

58. On 20 November 2014 a Court Attendance Notice (CAN) was served on Mr Maitland through his solicitor, Mr Whyburn. The prosecutor was identified as “Senior Investigator Paul Grainger” of ICAC. The details of the offences set out in the CAN were as follows:

Sequence

Number

Description & Short Particulars of Offence (including Act & Section)

1

Common Law Offence & Section 346, Crimes Act 1900.

Law Part Code 17097 & 53065

Accessory before the fact to misconduct in public office.

That between 17 January 2007 and 22 August 2008 in Sydney and elsewhere in the State of New South Wales, Ian Macdonald then holding public office as Minister for Mineral Resources did in the course of and connected to his public office wilfully misconduct himself by granting Doyles Creek Mining Pty Ltd consent to apply for an exploration licence under the Mining Act 1992, without reasonable cause or justification and John William Maitland did aid, abet, counsel and procure the commission of the said offence.

2

Common Law Offence & Section 346, Crimes Act 1900.

Law Part Code 17097 & 53065

Accessory before the fact to misconduct in public office.

That between 21 August 2008 and 16 December 2008 in Sydney and elsewhere in the State of New South Wales, Ian Macdonald then holding public office as Minister for Mineral Resources did in the course of and connected to his public office wilfully misconduct himself by granting Doyles Creek Mining Pty Ltd Exploration Licence No. 7270 under the Mining Act 1992, without reasonable cause or justification and John William Maitland did aid, abet, counsel and procure the commission of the said offence.

59. A CAN was also served on Mr Macdonald, through his solicitor, Mr Dan, which set out details of the two offences of misconduct in public office with which he was charged (in similar terms to Mr Maitland’s CAN, but with corresponding amendments having regard to the difference in the charges).

60. By letter dated 27 November 2014, Mr Walkowiak served Mr Whyburn with a Statement of Facts. On 15 December 2014 Mr Whyburn received a letter from the DPP inviting him to make submissions as to the possibility that an ex officio indictment would be filed in relation to the charges in the CAN. Mr Whyburn also received, on that day, 60 volumes of material. Much of this material constituted evidence given to ICAC in the course of its investigation. Further material was served on 19 February 2015.

61. On 25 February 2015 the DPP served on Mr Macdonald (through Mr Dan) and Mr Maitland (through Mr Whyburn) a Notice of Intention to file an ex officio indictment, which had been filed in the District Court. The letter notified the recipients that their clients were required to attend the District Court on 20 March 2015 for arraignment. The DPP also notified them that an application had been made under s 128 of the Criminal Procedure Act that their trials be removed to the Supreme Court.

62. Further material was served by the DPP on the applicants on 15 April 2015. By letter dated 28 April 2015 transcripts of compulsory examinations of 36 witnesses conducted by ICAC were served.

63. In April and May 2015 Mr Walkowiak was involved in the preparation of the Crown Case Statement, which was served on the applicants’ solicitors on 6 May 2015, together with three volumes of material referred to in it.

64. On 8 May 2015 the applicants were arraigned in this Court on an ex officio indictment.

65. For the purposes of preparing the prosecution case, Mr English conferred with 21 witnesses: Michael Costa, Brad Mullard, Alan Coutts, Alexander Cramb, Richard Sheldrake, Patricia Madden, Sue-Em Tan, Brendan McPherson, Anthony Maher, Jason Bartlett, Nicole Williams, Nicholas Papallo, Luke Foley, Jamie Gibson, James Chisholm, Gary Gibson, Morris Iemma, Paul Miller, Julie Mahoney, Peter Reynolds and Archibald Tudehope. I accept his evidence that he has not raised any aspect or part of the applicants’ compelled evidence before ICAC in any witness conference or accessed any such evidence for the purpose of drafting or settling any witness statements or proofs.

66. Between June 2015 and April 2016 Mr Walkowiak was involved in drafting witness proofs and statements from Morris Iemma, Nathan Rees, Michael Costa, Paul Miller, Luke Foley, George Campbell, Brad Mullard, Alan Coutts, Richard Sheldrake, Patricia Madden, Julie Maloney, Sue-Em Tan, Jamie Gibson, Craig Munnings, Richard Jones, Brendan McPherson, Michael Buffier, Peter Coates, Anthony Maher, Peter Reynolds, Jason Bartlett, Alexander Cramb, Nicole Williams, Nicholas Papallo, Archibald Tudehope, Adam Griffiths, Lawrie Ireland and Hessam Bahramali. These proofs and statements have largely been based on evidence given by those witnesses before ICAC or records of interviews conducted by ICAC and refer to the provenance of particular portions of evidence in footnotes. Mr Walkowiak did not refer to, or consciously use, the applicants’ compelled evidence for the purposes of preparing any of those witness proofs or statements.

67. On 2 September 2015, Mr Walkowiak wrote to the applicants’ solicitors in the following terms:

“Please be advised that members of the prosecution team have had access to and read the following from the inquiry conducted by the ICAC in relation to Operation Acacia:

The public hearing transcript of the accused; and

Extracts of the private hearing transcript of the accused tendered during the public hearing.

Apart from the extracts of the private hearing transcript of the accused tendered during the public hearing the prosecution team have not had any access to the private hearing transcript of the accused.

If an application for temporary stay is to be made in relation to this matter, based to the above information and comments by the High Court in Lee v The Queen [2014] HCA 20 and X7 v Australian Crime Commission (2013) 248 CLR 92, it should be included in the Notice of Motion(s) due to be filed on 7 September 2015.

68. I accept Mr English’s evidence that he discussed the terms of this letter (presumably when it was in draft form and before it was sent) with Mr Walkowiak and, in that context, referred to those aspects of Mr Maitland and Mr Macdonald’s evidence that he could still recall.

69. Between December 2015 and April 2016 Mr Walkowiak conferred with witnesses, including those in respect of whom he had drafted statements or proofs of evidence. He did not refer to the applicants’ compelled evidence in these conferences. To his knowledge no one else at the conferences referred to the applicants’ compelled evidence, with the following single exception.

70. During Mr Walkowiak’s conference with Mr Tudehope, Mr Tudehope said that he had read in the paper that Mr Maitland had given compelled evidence to ICAC that he had not spoken to anyone about giving evidence in a private compulsory examination conducted by ICAC. Mr Walkowiak then played a recording of a telephone conversation between Mr Tudehope and Mr Maitland.

71. On 9 February 2016 ICAC removed from its website all public inquiry transcripts and exhibits connected with Operation Acacia. On 26 May 2016, all such documents were deleted from ICAC’s internet server to ensure that they could not be accessed.

72. On 23 March 2016, Mr Whyburn wrote to Mr Walkowiak, relevantly in the following terms:

As you would be well aware all of Mr Maitland’s evidence before ICAC was given under compulsion, and subject to his objection pursuant to ss 37 and 38 of the Independent Commission Against Corruption Act 1988. As such, the prosecution team has had the benefit of Mr Maitland’s compelled evidence before ICAC, in circumstances that are relevantly analogous to those considered by the High Court in Lee v The Queen (2014) 235 CLR 455.

73. Correspondence ensued between Mr Whyburn, Mr Dan and Mr Walkowiak regarding the roles played by respective lawyers for the DPP and their access to evidence compelled by ICAC. It is not necessary to detail such correspondence as these matters have been established by the evidence on the notices of motion.

The present recollection of witnesses as to the contents of the evidence compelled from the applicants

74. The Crown adduced evidence from several witnesses who played, and continue to play, a role in the prosecution of the applicants. Such witnesses included Susie Kim, solicitor, who worked on the matter between mid-June 2015 and 22 April 2016 and who did not have any knowledge of the applicants’ compelled evidence and did not ever hear it being referred to; and Mr Neil, who, though briefed with an electronic copy of the entire transcripts and exhibits from the public inquiry (which included the applicants’ compelled evidence), never accessed it or read it and was not aware that he had received it.

75. On the basis of the Crown’s evidence I accept that only Mr English and Mr Walkowiak have read the applicants’ compelled evidence and that Mr Babb and Mr Alder have read limited extracts from the applicants’ compelled evidence which related to consideration of charges different from those the subject of these proceedings. To the extent to which findings about their role and recollection has not been included in the narrative above, they are set out below.

Mr English

76. Mr English gave evidence (via audio-visual link) from the United Kingdom. I accept his evidence, which he gave in a careful and considered way. He made appropriate concessions about aspects of memory put to him by Mr Jordan SC, who appeared with Mr Kerkyasharian on behalf of Mr Maitland.

77. Mr English read the compelled evidence provided to him by NSWCC for the purposes of the brief in August 2013 and may have re-read it for the purposes of the brief from the DPP, which he received in about June 2014. He did not impart his knowledge of the compelled evidence to anyone else on the prosecution team or to any potential witnesses and did not access the compelled evidence after October 2014.

78. I accept Mr English’s evidence that he has only a vague recollection of Mr Maitland’s evidence before the ICAC public inquiry. His recollection comprised allegations of various misstatements being put to Mr Maitland. He does not recall the responses. He does not recall any part of Mr Maitland’s private examination which was tendered in the public inquiry.

79. I accept Mr English’s evidence that he currently recalls only the following aspects of the compelled evidence given by Mr Macdonald at the public inquiry:

1. Mr Macdonald’s evidence that he said, at the dinner at the Strangers’ Dining Room at Parliament House on 17 June 2008, that he required about eight conditions before he would agree to granting an exploration licence to DCM, of which Mr English remembered only two: that there be both industry and community support.

2. Mr Macdonald did not agree that he received either or both of the briefing notes from the Department of Primary Industry (DPI) dated 22 February 2007 and 13 May 2008 respectively because they do not bear his signature.

Mr Walkowiak

80. I accept Mr Walkowiak’s evidence that the only reason he read the applicants’ compelled evidence was for the purposes of providing the advice to Mr Babb on 7 October 2014.

81. I accept his evidence, including the following evidence as to his recollection of the applicants’ compelled evidence:

13.   I currently have no specific recollection of the evidence given by Mr Maitland to the ICAC, apart from some questions and answers in relation to whether or not Mr Maitland had discussed with anyone his attendance at a private hearing.

14.   I currently have no specific recollection of the evidence given by Mr Macdonald to the ICAC, apart from the following:

(a)   Mr Macdonald gave evidence to the affect that the DPI had recommended to him that he directly grant the exploration licence to Doyles Creek Mining and that he would not have granted the exploration licence if they did not support it.

(b)   Mr Macdonald gave evidence in relation to other examples of direct allocations of exploration licences.

(c)   Mr Macdonald gave evidence about the dinner at the Stranger’s Dining Room at Parliament House on 17 June 2008 that he required a number of conditions before he would agree to granting the exploration licence to Doyles Creek Mining. The only specific conditions which I can recall are (1) industry support and (2) community support.

(d)   Mr Macdonald gave evidence to the affect that he had not received a formal briefing note in relation to at least one of the briefing notes prepared by the DPI in relation to the application by Doyles Creek Mining.

(e)   Mr Macdonald gave some evidence on the topic of the Budget Estimates Committee.

Mr Babb

82. I accept Mr Babb’s evidence that the only occasion on which he read any extract from the compelled evidence was when he received advice on 24 June 2014 with respect to Mr Maitland, which contained extracts from his compelled evidence, and when he received advice on 7 October 2014 with respect to Mr Macdonald. These advices were not prepared with respect to the current charges the subject of these proceedings. I accept Mr Babb’s evidence that he can no longer recall those extracts and has not re-read these documents since.

Mr Alder

83. Mr Alder deposed that on 24 June 2014 he was provided with an internal recommendation from a solicitor within the DPP’s office who has not had any role in the prosecution of Mr Macdonald for misconduct in public office or the prosecution of Mr Maitland for accessory before the fact to misconduct in public office. He no longer recalls the details of the advice accompanying the recommendation. He was informed, on 25 May 2016, for the purposes of swearing an affidavit to be relied on by the Crown in opposition to the applicants’ motion, that the advice contained extracts from the transcript of the private compulsory examination conducted by ICAC on Mr Maitland on 13 July 2012 and his public examination on 7 May 2013. I accept Mr Alder’s recollection that he no longer recalls those extracts and that he has not referred to or accessed or read extracts from the transcript of Mr Macdonald’s evidence to the public inquiry.

The alleged prejudice: the nature and extent of the connection between the compelled evidence and the applicants’ potential defences

84. Mr Walkowiak was extensively cross-examined about the connection between those aspects of the compelled evidence which he could recall and the prosecution case. These will be addressed in turn.

Crown case that officers of the DPI did not recommend that Mr Macdonald allocated the exploration licence to DCM

85. Mr Walkowiak recalled that, in his compelled evidence, Mr Macdonald denied receiving the briefing notes from the DPI (see [14(d)] of his affidavit extracted above). Mr Walkowiak’s evidence in cross-examination was that, irrespective of what Mr Macdonald’s position was on the briefing notes, the Crown would have to prove as part of its case that he received the briefing notes. Accordingly, he did not regard his knowledge of Mr Macdonald’s denial as being of any assistance.

86. Mr Walkowiak was cross-examined by Mr Odgers SC, who appeared on behalf of Mr Macdonald, about evidence compelled from Mr Macdonald at the public inquiry when he was asked about an email Mr Maitland sent to Mr Tudehope on 26 November 2008 as follows:

“Arch [Tudehope], I had a dinner meeting with the Minister for Mines last night and he informed me that I will have the letter of approval for the Exploration Licence in my hands on Friday 5 December.”

87. Mr Macdonald denied, in his compelled evidence, that he had made a decision by 26 November 2008 and said that no final decision had been made and that everything depended on whether the DPI recommended it. It was put to Mr Walkowiak that this portion of Mr Macdonald’s compelled evidence influenced him to obtain evidence in support of the Crown case that Mr Macdonald had already made the decision by 26 November 2008. Mr Walkowiak explained that the two relevant dates in the indictment were 21 August 2008 (being the date of Mr Macdonald’s consent to DCM to apply for an exploration licence) and 16 December 2008 (being the date on which the exploration licence was granted by direct allocation to that company) and that he appreciated that the Crown had to prove what occurred in relation to both of those steps.

88. Mr Odgers also cross-examined Mr Walkowiak about Jamie Gibson’s statement dated 14 January 2016 in which Mr Gibson deposed (in [28]) that Mr Maitland and Mr Macdonald discussed the formal application and potential conditions of the licence over dinner on 25 November 2008. This paragraph bears a footnote which refers to a statement of Jamie Gibson of 19 May 2014. Mr Walkowiak confirmed that the statement of 19 May 2014 would have been prepared by ICAC as he only came into the matter at about that time. He also confirmed that Mr Gibson’s evidence that, as at 25 November 2008, there had been no Departmental response regarding the formal application by DCM derived from evidence Mr Gibson had given at the ICAC public hearing.

Relative yields of comparative extraction of coal

89. In cross-examination, Mr Walkowiak was shown an email dated 20 May 2015 which he had sent to Gary Gibson, an expert in mining, to ask him to provide an expert report for the purposes of the prosecution. Mr Walkowiak asked him to consider the difference between bord and pillar mining on the one hand and longwall mining on the other and the relative rates of extraction of each method. It was put to Mr Walkowiak that his sending of the email was influenced by his reading of Mr Maitland’s compelled evidence. Mr Walkowiak rejected the proposition and said that the request for a report arose from the document entitled “Doyles Creek Conceptual Mine Layout – December 2007”, which indicated a particular area for a “training panel” (which was to be mined using the bord and pillar technique).

90. Mr Jordan put an extract from Mr Maitland’s compelled evidence to Mr Walkowiak in which he compared the yield from bord and pillar, which he estimated to be about 50%, with the yield from longwall mining, which he estimated to be about 70%. Mr Walkowiak accepted that his email and Mr Maitland’s compelled evidence were dealing with the same topics but rejected the proposition that the compelled evidence was the impetus for the email and maintained that the request in his email to Mr Gibson arose from the concept plan referred to above. When Mr Jordan asked how Mr Walkowiak had come to understand the difference between the two techniques, he responded by explaining that he had googled it. Mr Walkowiak said that if he had been relying on Mr Maitland, he would not have googled it.

91. The Crown tendered evidence which Mr McCowan had given in a compulsory examination conducted in private on 13 August 2012 in which he gave evidence about the relative costs and efficiencies of longwall and bord-and-pillar mining, although he did not quantify them in percentage or absolute terms. The Crown also tendered the transcript of the public examination of Mr Ireland, the expert who was responsible for drawing the training panel on the document entitled “Doyles Creek Conceptual Mine Layout – December 2007” (referred to above) and for calculating the figure of 150,000 tonnes which was indicated as the yield for the training panel. In his evidence Mr Ireland explained that the yield from the training panel would have been “first workings”, which is a reference to the bord and pillar method, as opposed to the longwall method. He explained that “you would end up with somewhere around a 30 per cent reserve from that block of coal with those dimensions”.

92. I reject Mr Jordan’s submission that the circumstance that Mr Maitland’s compelled evidence was the only time that precise percentage figures for the relative yields were mentioned meant that Mr Walkowiak was assisted or otherwise influenced by the compelled evidence when seeking the opinion from Mr Gibson. I am satisfied that the relative yields from bord and pillar mining and longwall mining were an issue in the course of the public inquiry and that this appreciation derived from evidence other than the compelled evidence of Mr Maitland. I am not satisfied that there is any real prospect that Mr Walkowiak’s email to Mr Gibson was influenced by Mr Maitland’s compelled evidence.

Documents provided to the Premier relating to Doyles Creek Mine

93. On 17 May 2013, in the public inquiry, Mr Macdonald was examined about a document relating to the proposed mine at Doyles Creek which was to be provided to the Premier’s Department prior to budget hearings. He explained to ICAC that the purpose of the document was to inform the Premier and the Cabinet Standing Committee on Public Administration of what was going on in case his budget estimates committee received a question relating to the issue and described it as a “clear indication” to the Premier’s office of what was happening with the Doyles Creek proposal.

94. Mr Walkowiak said that a number of witnesses gave evidence in the public inquiry about three different versions of a document prepared for budget estimates with respect to Doyles Creek.

95. Mr Odgers put to Mr Walkowiak a statement of one of the Crown witnesses, Mr Costa, dated 18 January 2016, in which he deposed that he had no recollection of a specific proposal in relation to building a training mine in the Doyles Creek region but that he would have expected such a proposal to have been brought before Cabinet. In the same statement Mr Costa set out the difference between budget estimates hearings on the one hand and the budget committee of Cabinet. Mr Walkowiak rejected the proposition put to him by Mr Odgers that he had obtained evidence as to that distinction because of Mr Macdonald’s compelled evidence referred to above. I accept Mr Walkowiak’s explanation as follows:

Essentially the statement was sought to clarify the difference ‑ there was a lot of uncertainty based on, from my recollection, the answers given by witnesses during the public inquiry as to what occurred with the documents that were prepared by the department and given to the Minister's office in relation to budget estimates and so my understanding was that it was directed at clarifying the difference between the nature of those two processes so we could have an understanding of those two processes.

96. Mr Walkowiak was also cross-examined about Mr Macdonald’s compelled evidence in ICAC to the effect that he had no recollection of Mr Rees (as Premier) ever telling Cabinet Ministers that if there was a proposal which would have the effect of requiring New South Wales to forego revenue, it should be put before Cabinet. It was put to Mr Walkowiak that this compelled evidence was the reason he obtained evidence from Mr Costa to the effect that he did not recall the DCM proposal ever being put to Cabinet. Mr Walkowiak refuted that suggestion and said that Mr Rees himself had given evidence to ICAC that he had told Ministers of the need to bring such proposals to Cabinet. He also said that Mr Costa’s evidence (that such proposals would be put to the budget committee of Cabinet) in his statement dated 18 January 2016 derived from the transcript of a private hearing before ICAC, as indicated by the footnotes to the relevant paragraphs. Moreover, Mr Walkowiak explained that, in the conference with Mr Costa, it was Mr Neil (who had not read any of the evidence compelled from the applicants), not Mr Walkowiak, who asked Mr Costa the questions.

97. Mr Walkowiak was shown a statement of Patricia Madden, another Crown witness, in which the deponent addressed a brief she had prepared entitled “Doyles Creek Training Mine”. It was put to him that he had obtained that evidence as a result of Mr Macdonald’s compelled evidence referred to above. Mr Walkowiak refuted the proposition on the basis that the relevant paragraph of the statement was footnoted with a reference to a statement made by Ms Madden dated 22 May 2013, which had been obtained by ICAC as a result of its own investigations prior to the public inquiry.

Whether direct coal allocations by Ministers were common

98. Mr Walkowiak was asked by Mr Odgers about Mr Macdonald’s compelled evidence to the effect that it was not unusual at the relevant time for a Minister to allocate an exploration licence directly. Mr Walkowiak said that either Mr Mullard or Mr Coutts had given evidence to ICAC as to this question and that he was, accordingly, aware that there was an issue whether direct allocation was orthodox. Mr Walkowiak’s attention was drawn to evidence on this topic in Mr Mullard’s statement dated 16 December 2015. Mr Walkowiak rejected the proposition that he had been influenced to obtain that evidence by his knowledge of Mr Macdonald’s compelled evidence and explained that the footnotes indicated that ICAC had obtained the statement from Mr Mullard before charges had been laid.

The relationship between the applicants

99. I note that Mr Walkowiak was not cross-examined at all about the topic of the relationship between the applicants. Mr Jordan relied on the fact that Mr Maitland had given compelled evidence on this topic in a private examination on 13 July 2012 about his communications with Mr Macdonald and whether he had his office and mobile telephone numbers. In his public examination on 7 May 2013, several questions were asked and propositions put to Mr Maitland about his relationship with Mr Macdonald. Mr Braham, counsel assisting the Commissioner, put to Mr Maitland the evidence of various witnesses in the public inquiry about this relationship, including Mr Foley, Mr Rees, Mr Munnings, Mr Maher and Mr Cameron.

100. It is plain from the Crown Case Statement that it is part of the Crown case that Mr Macdonald allocated the exploration licence to DCM because of his close relationship with Mr Maitland. The questions asked by counsel assisting of Mr Maitland which referred to the evidence of this relationship given by other witnesses indicates that the nature and extent of the relationship was an issue that arose well before the compelled evidence was given. I am not satisfied that Mr Walkowiak’s preparation of the Crown case was influenced, much less assisted, by the evidence compelled from the applicants on this topic.

Submissions

The applicants’ submissions

101. Mr Odgers substantially adopted the submissions made by Mr Jordan. Accordingly, I propose to address their submissions collectively.

102. The applicants submitted that although the compelled evidence was downloaded by Mr Noll from the ICAC website on 24 June 2014, rather than provided by ICAC, it ought nonetheless be regarded as having been provided by ICAC, as ICAC made the evidence available on its website, albeit to the public at large, rather than specifically to the DPP.

103. The applicants submitted that the combined effect of ss 2A, 13(5)(b)(i), 14(1), 37 and 74B of the ICAC Act was that ICAC is not authorised to provide to the DPP (and the DPP was not entitled to receive) evidence obtained from a person under compulsion, over objection, for the purpose of obtaining advice on whether or not that person should be prosecuted for a criminal offence other than an offence under s 87 of the ICAC Act.

104. The applicants relied on the absence of any reference in s 2A of the ICAC Act to a prosecution or to obtaining evidence for the purposes of prosecution. They submitted that the wording of s 14(1), which provided that it was a function of ICAC to gather any evidence that may be admissible in the prosecution of a person and provide it to the DPP, necessarily implied that ICAC was prohibited from providing to the DPP any material other than admissible evidence and that s 14(1) ought be read as containing that prohibition. They contended that there was no need for s 37 to provide for indirect use protection (although that was its effect) because s 14 incorporated the prohibition referred to above which meant that the DPP would only receive admissible evidence anyway.

105. The applicants submitted that, if s 15A of the DPP Act applied at all (having regard to the prohibition in s 14), it excluded the provision of answers or documents which were the subject of a claim for privilege and that the compelled evidence fell into that category.

106. The applicants submitted that R v OC (Oliver Curtis) was distinguishable on two bases: first, ASIC can prosecute in its own right, without the need to obtain advice from the DPP; and, secondly, the ASIC Act abrogates only the privilege against self-incrimination, whereas an objection under s 37 of the ICAC Act can be taken on any basis whatsoever. They argued that the result in R v OC (Oliver Curtis) depended on the precise wording of s 68 of the ASIC Act and had no application in the present case. They submitted that, unlike in R v OC (Oliver Curtis), there would be no reason for a court to review the compelled evidence that had been objected to in ICAC if the Crown sought to tender it since it was, necessarily, inadmissible, a declaration under s 38 of the ICAC Act having been made in respect of all of their evidence. Accordingly, no adjudication such as was required under the ASIC Act at the time of tender was called for.

107. They contended, in the alternative, that they did not need to go so far as to establish that the provision of their compelled evidence to the DPP was prohibited or unauthorised in order to obtain the relief sought. The applicants submitted that the limitation for which they contended preserved the companion principle in relation to evidence given to ICAC under compulsion over objection in compulsory examination or public inquiry. They contended that the “irresistible clearness” (derived from Potter v Minahan [1908] HCA 63; 7 CLR 277 at 304 per O’Connor J, referring to United States v Fisher 6 US 358 at 390 (1805)) which would be required to abrogate the right conferred by the companion principle was “strikingly absent” from the ICAC Act.

108. The applicants also relied on the circumstance that no substantial amendments were made to the ICAC Act (as distinct from the Crime Commission Act 2012 (NSW), the successor to the NSWCC Act) as a consequence of the decisions of the High Court in X7 v Australian Crime Commission and Lee v The Queen. The applicants argued that this tended to reinforce the conclusion that “there was never any intention to abrogate the accusatorial system of criminal justice”.

109. The applicants submitted that, although there were differences between s 112 of the ICAC Act and s 13(9) of the NSWCC Act (which was considered in Lee v The Queen), the only material difference between the sections was that s 112 effectively imposed a requirement on ICAC to make a direction when indictable proceedings were already on foot (presumably since such a direction would inevitably be necessary and desirable in the public interest in such a case) while the NSWCC’s obligation in s 13(9) of the NSWCC Act extended to persons who “may” be charged. They contended that the present case was, accordingly, analogous to the circumstances in Lee v The Queen in that their compelled evidence had been provided to the DPP without lawful authority and that their rights to a fair trial had been “altered in a fundamental respect” (relying on Lee v The Queen, at [43] and [51] per French CJ, Kiefel, Bell and Keane JJ).

110. Indeed, the applicants submitted that the present case involved “a more far reaching infringement” than in Lee v The Queen on the basis that, in the latter case, the DPP did not have access to the compelled evidence until after charges were laid; whereas in the present case, the compelled evidence has been available from an early stage. They relied on the fact that Mr English and Mr Walkowiak have had access to such evidence to give advice on whether, and what, charges should be laid, draft and settle the Crown Case statement, confer with witnesses and draft or settle their proofs of evidence.

111. They contended that the decision to commence the present proceedings (trial by indictment for misconduct in public office or accessory before the fact) was made after the DPP (Mr Babb) had read extracts of evidence compelled from each of the accused and that this circumstance constituted actual prejudice. They submitted that the companion principle ought not be confined to the time from the laying of charges, and ought also apply to the consideration whether charges ought be laid.

The relief sought: permanent or temporary stay

112. The applicants relied on the following in support of their application for a stay:

1. The prosecution overlaps with the matters with which Operation Acacia was concerned (and matters in respect of which the applicants were examined, both in private hearings and in the public inquiry), namely the allocation by Mr Macdonald of the exploration licence to DCM, and the circumstances of the relationship between the two applicants;

2. ICAC was not entitled to forward the applicants’ compelled evidence to the DPP (except in relation to potential charges under s 87) and that, even if the provision of such evidence was not expressly prohibited, it was inconsistent with the accusatory system and the statutory scheme that it be provided;

3. It was of benefit to the DPP to know what evidence had been compelled from the applicants since the DPP thereby gained foreknowledge of the potential defences that would, or could, be raised by the applicants and could therefore allocate more resources and attention to the matters known to be in issue (such as whether Mr Macdonald received the DPI briefings recommending against a direct allocation to DCM);

4. The evidence of Mr Babb, Mr English and Mr Walkowiak about what they recalled was not particularly reliable because of the accepted unforeseen recovery of lost memory; and

5. The evidence of Mr English and Mr Walkowiak that they had been careful not to use the knowledge they had obtained through being privy to the evidence compelled from the applicants was unreliable because they were not in a position to be definitive about the use to which they put such knowledge, which may have subconsciously influenced their forensic decisions.

The conduct of the examination in the public inquiry

113. The applicants submitted that there was a discrete and additional basis on which a permanent stay ought be granted which did not depend on disclosure of the compelled evidence to the DPP. They contended that the examinations conducted by ICAC in the public inquiry gave rise to such an increased jeopardy of prosecution (for an offence under s 87) that each applicant’s right to make a forensic decision whether to give evidence on his own account had been substantially affected. They argued that, if they chose to give evidence, the potential for arguably inconsistent answers (between their evidence at trial and their compelled evidence before ICAC) would expose them to an unwarranted risk of prosecution under s 87 of the ICAC Act. They submitted that the effect of this consequence was to fundamentally affect their right to choose whether to give evidence or remain silent.

114. The applicants highlighted the following circumstances:

1. The length of their public examinations made them oppressive;

2. Many of the questions were leading, discursive and repetitive;

3. Many of the questions would have been inadmissible in a court;

4. Mr Maitland was repeatedly asked to comment about the evidence that others had given in ICAC in a way which went beyond what was required to afford natural justice;

5. Although Mr Maitland was legally represented by experienced counsel (Mr Darke) in ICAC, his objections to questions posed by counsel assisting were dismissed in an apparently peremptory way; and

6. The number of questions and the discursive and hostile manner in which they were asked increased the jeopardy to the applicants if they chose to give evidence at their criminal trial.

Further relief sought: requirement that fresh prosecution team be constituted

115. The applicants submitted, on the basis of the narrative set out above, that Mr Walkowiak and Mr English were involved in drafting and settling statements and proofs of evidence of Crown witnesses between about June 2015 and March 2016 and conferring with such witnesses between about December 2015 and March 2016. They submitted that, if I declined to grant a permanent stay, I ought grant a temporary stay on terms that the evidence of each of the witnesses named in the notice of motion be required to be prepared from scratch by persons who had not read the compelled evidence of the applicants.

The Crown’s submissions

116. The Crown’s submissions contained a detailed analysis of the relevant statutory provisions, with particular emphasis on the ICAC Act. The provisions relied upon have been addressed in the summary of statutory provisions set out above.

117. The Crown submitted that the only use made by the DPP of the applicants’ compelled evidence occurred prior to their being charged. It relied on the proposition that the “companion principle” does not operate as an aspect of the principle of legality for the purposes of statutory construction in advance of the commencement of criminal proceedings: R v Independent Broad-based Anti-Corruption Commissioner [2016] HCA 8 (R v IBAC); 90 ALJR 433 at [48]-[52] (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ). It submitted that to apply the companion principle to the ICAC Act in anticipation of the commencement of criminal proceedings would be antithetical to the investigation and exposure of corrupt conduct by public officials, which is an object of the Act.

118. The Crown contended that the objects provision, s 2A of the ICAC Act, indicated that the results of ICAC’s investigations are intended to be made public. It submitted that ss 16 and 53 of the ICAC Act were expressed in broad terms which showed that Parliament did not intend to constrain ICAC’s power to provide information obtained in the course of its investigations to others. The Crown argued that ICAC’s function of deciding whether independent advice should be sought from the DPP was consistent with s 14A of the Criminal Procedure Act which specifically provided that ICAC is dependent on the DPP for independent advice with respect to the commencement of criminal prosecutions. It contended that the material on the basis of which independent advice could be given must, by implication, include the transcripts of public examinations conducted by ICAC.

119. The Crown submitted that s 14(1)(a) of the ICAC Act, which empowered ICAC to furnish to the DPP evidence that may be admissible in the prosecution of a relevant criminal offence, did not affect ICAC’s duty to furnish information to the DPP pursuant to s 15A of the DPP Act, which was expressed, by s 15A(5), to be “in addition” to any other duties of law enforcement officers in connection with the investigation or prosecution of offences. The Crown relied on the breadth of the duty in s 15A, which was not limited to admissible or potentially admissible evidence and required, in addition, the disclosure of the existence of privileged material (although not the privileged material itself unless the DPP requested it) and of the existence of material the subject of a statutory non-publication restriction (although not the subject of material covered by the restriction).

120. The Crown contended that, although s 15A is expressed in terms of a duty, the necessary power for ICAC officers to perform that duty was necessarily implied: Australian Securities Commission v Bell (1991) 32 FCR 517 at 528 (Sheppard J). It relied on what it submitted was a powerful distinguishing feature in the present case: ICAC was not only authorised, but also obliged, to disclose the examination transcripts (including the compelled evidence) to the DPP and the DPP was obliged to consider them, at least to determine whether there had been a breach of s 87 of the ICAC Act.

121. The Crown relied on the dicta of Gageler J in R v IBAC at [65] in support of its contention that s 18(1) (which was analogous to s 70(1) of the Independent Broad-based Anti-Corruption Commission Act 2011 (VIC)) expressly abrogated the common law presumption that a statutory power to investigate an offence ends when the prosecution for that offence begins: see Hammond v The Commonwealth (1982) 152 CLR 188 at 198-199 per Gibbs CJ (Mason and Murphy JJ agreeing on this point) and at 206 per Deane J. It submitted that the references to trial by jury and the actual taking of evidence by the prosecution in s 18(2A) indicate that the mischief to which s 18(2) is directed is that the publicity attracted by an investigation could affect the capacity of jurors to confine their deliberations to the evidence in the trial to the exclusion of the information in the public domain as a result of the investigation. The Crown described s 18 as constituting the ICAC Act’s “own express scheme for the protection of the fairness of trials”.

122. The Crown contrasted the effect and purpose of s 18 of the ICAC Act with s 13(9) of the NSWCC Act. It contended that the ICAC Act did not contain any provision that was equivalent to s 13(9) which had a similar purpose of protecting the future fair trial of a person who might be charged with offences as a result of an investigation conducted by ICAC.

123. The Crown submitted that the several limbs of s 37(2) evince a legislative intention to effect the widest possible abrogation of privilege. The protection from direct use conferred by s 37(3) by making the evidence inadmissible in subsequent proceedings is the sole protection remaining, but only if objection is taken. If no objection is made, the answer or document is admissible: s 37(4)(b).

124. The Crown contended that an objection taken in the course of an examination conducted by ICAC has evidentiary consequences by reason of s 37(3) of the ICAC Act but does not fall within s 15A(6) of the DPP Act because it is not “the subject of a claim of privilege, public interest immunity or statutory immunity” (all relevant privileges having been abrogated). It contended that the reference to “public interest immunity or statutory immunity” is a separate category. It relied on the proposition that public interest immunity could not be waived (and was therefore in a different category from privileges such as legal professional privilege and the privilege against self-incrimination). It contended that the term “statutory immunity” referred to provisions conferring immunity from disclosure such as the secrecy provisions in s 111 of the ICAC Act and s 80 of the Crime Commission Act 2012 (NSW).

116. The Crown relied on R v OC (Oliver Curtis) in support of the proposition that Parliament could, by appropriate statutory wording, authorise the provision of transcript of a compulsory examination to those responsible for determining whether to charge the examinee and institute criminal proceedings, as well as for the purposes of carrying out the prosecution.

117. The Crown submitted that, although one consequence of its submissions was that the DPP and his officers and legal representatives could use the compelled evidence for the preparation of the prosecution case, even after charges had been laid, it was not necessary to decide that question in the present case. It argued that the fact that the compelled evidence had been given in public provided a sufficient, and independent, reason why there was no impediment to its being known to (and used by, whether subconsciously or otherwise) the members of the prosecution team. The Crown pointed to the artificiality of the remedy proposed by the applicants which would have the following consequences:

1. the DPP could consider the compelled evidence for the purposes of deciding whether s 87 charges ought be brought, but would have to bring in another DPP officer to consider other charges;

2. no person who had seen or otherwise been privy to (whether as part of the ordinary daily life of the community or in his or her role for the DPP) any part of the compelled evidence could take part in advising whether charges (other than under s 87) ought be brought or in the preparation of the prosecution case for any offence other than under s 87.

127. The Crown submitted that the legislature had made “large choices” to have some of the work of ICAC (including the investigation of potentially criminal conduct) conducted in public and that the consequence of these choices was that the prosecutors (and the public at large) were aware of the content of the compelled evidence before charge.

128. The Crown relied on the following dicta from the judgment of Gageler and Keane JJ in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [323] in which their Honours said:

There is a variety of ways in which, as a matter of practical reality, the examination on oath of a person against whom criminal proceedings have been commenced may have a tendency to give rise to unfairness amounting to an interference with the due course of justice in a particular case. The deprivation of a legitimate forensic choice available to the person in those proceedings may be one of those ways. However, we are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination.

129. The applicants contended, in reply, that this passage was not concerned with the examinee’s forensic choice whether to give evidence in his defence, but rather the way the cross-examination could be conducted and how other evidence in chief would be led. Accordingly, the applicants argued that it provided no answer to their argument as to the jeopardy they faced as a result of being compelled to give such extensive evidence in the public inquiry.

Consideration

The grounds for a stay

Criminal proceedings should be stayed permanently only in exceptional cases: Jago v The District Court of New South Wales (1989) 168 CLR 23 (Jago). The Court must be satisfied the continuation of the proceedings would, relevantly, involve unacceptable injustice or unfairness: R v Edwards [2009] HCA 20; 83 ALJR 717 at [23]. The test is a “would” test, not a “could” test. The mere risk of unacceptable injustice or unfairness is insufficient: TS v R [2014] NSWCCA 174 at [1] per Leeming JA. The Court must be satisfied that no other means are available to remedy that feature which, if unremedied, would render the proceeding so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay: Jago at 57 and 78.

130. Where there is a feature which creates unfairness but which can be remedied, a temporary stay may be appropriate. Further, the evidence of witnesses tarnished by the unfairness may be excluded.

The effect of relevant legislation on the applicants’ common law rights

131. As referred to above, the question whether a stay ought be granted (whether permanent or temporary) is largely one of statutory construction and requires an analysis of the relevant statutory provisions in order to determine their effect on common law principles. The reason for this is that the common law privilege against self-incrimination can be abrogated and the companion principle affected, as long as the legislative intention is sufficiently clear. As was said in Environment Protection Authority v Caltex Refining Co. Pty Ltd (1993) 178 CLR 477, at 533-534 (Deane, Dawson and Gaudron JJ):

Nevertheless, a statutory intention to modify or abrogate a common law right, such as the privilege against self-incrimination, must emerge clearly, whether by express words or necessary implication. When it does the courts must give it effect. There is no constitutional constraint as in the United States. But, as with the legislation which the Court considered in Pyneboard Pty Ltd v Trade Practices Commission and Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs, the legislature may, whilst compelling the production of incriminating material, provide protection against its use in the prosecution of the person producing it, whether a natural person or a corporation. Questions arise as to the extent of the protection necessary — whether it should prevent only direct use or whether it should extend to derivative use — but that is something which is properly a matter for the legislature to consider.

132. Before turning to the legislation, I propose to address, so far as is relevant, the principal authorities relied on by the parties: X7 v Australian Crime Commission; Lee v The Queen; and R v OC (Oliver Curtis) and Redacted Judgment [2015] NSWCCA 281 (Redacted Judgment).

Relevant authorities

X7 v Australian Crime Commission

133. In November 2010 X7 was arrested and charged with conspiracies involving drugs under the Criminal Code 1995 (Cth). While in custody awaiting trial he was served with a summons to appear and give evidence before the ACC. On the first day, he attended the compulsory examination and answered questions that related to the very matters that gave rise to the charges. On the following day, he refused to answer any further questions of that nature. As a consequence, he was told that he would be charged with failing to answer questions.

134. By narrow majority (Hayne, Bell and Kiefel JJ, French CJ and Crennan J dissenting), the High Court held that to permit the executive to ask, and compel answers to, questions about the subject matter of a pending charge (irrespective of what use might be made of those answers at the trial of an accused person) would “fundamentally alter the process of criminal justice” ([85]). Their Honours held that to construe the ACC Act as the ACC contended would “alter to a marked degree the accusatorial nature of the criminal justice system” ([87]). The majority held that the ACC Act did not authorise an examiner to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence. I respectfully adopt Bathurst CJ’s (Beazley P, Hidden, Fullerton and R A Hulme JJ agreeing) summary of the propositions for which X7 v Australian Crime Commission is authority in X7 v R [2014] NSWCCA 273; 292 FLR 57, at [105] as follows:

First, as a matter of construction the ACC Act did not permit an examination of a charged person about the matters for which they had been charged. This was because such an examination fundamentally altered the accusatorial judicial process. The accused could no longer decide the course to adopt according only to the strength of the prosecution's case, but rather also in light of any self-incriminating answer he or she had been compelled to give at the examination. Second, such an examination constituted a contempt of court. Third, the conclusion did not depend on the fairness or otherwise of the trial, as what was required was a trial according to law.

135. In X7 v Australian Crime Commission Hayne and Bell JJ described the prejudice suffered by an accused who is compulsorily examined in the following terms at [124]:

Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.

136. This passage was approved in Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 (Lee No. 1) by French CJ at [54] (footnote 173); Kiefel J (Bell J agreeing) at [163] (footnote 341). Although Hayne J did not refer to the passage specifically in Lee No. 1, his Honour restated the principle in similar terms in Lee No. 1 at [79]. To the extent to which the other members of the High Court (Crennan, Gageler and Keane JJ) said, or implied that secrecy provisions were sufficient to address that prejudice (Crennan J at [141] and Gageler and Keane JJ at [340], they were in the minority.

Lee v The Queen

137. The appellants, Jason and Seong Lee (who were father and son), stood trial on various drug and firearm offences. The father had been examined by the NSWCC on two occasions prior to being charged. The NSWCC had given a direction pursuant to s 13(9) of the NSWCC Act prohibiting the publication of evidence (except as specified) on the basis that publication might prejudice his fair trial if he were charged. The son was also examined by the NSWCC before charge. After they were charged, the transcripts of their evidence before the NSWCC were provided to the DPP, contrary to the direction pursuant to s 13(9).

138. In the course of a pre-trial hearing in November 2010, the prosecutor accepted that, although he could not rely on the material provided to the NSWCC because of the “use” immunity, he intended to use the material derivatively because it provided the Crown with considerable insight into the nature of the defence case.

139. Both appellants were convicted after a trial by jury in the District Court of drug and firearm offences. In a unanimous judgment, the High Court held that the criminal trial of the appellants had been affected in a fundamental respect because the provision of the transcripts to the Crown “altered the position of the prosecution vis-à-vis the accused” ([51]). Accordingly, the convictions were quashed and a new trial ordered. The Court held that the question was not whether the publication of the transcripts was unlawful or wrongful but whether, as a result of the Crown obtaining the appellants’ evidence, there was a miscarriage of justice.

R v OC (Oliver Curtis)

140. In R v OC (Oliver Curtis), a summary of Mr Curtis’s examination pursuant to s 19 of the ASIC Act was provided to officers of the CDPP and prosecuting counsel. It was used not only to formulate a charge but also to prepare the prosecution case. Chief Justice Bathurst (R A Hulme and Bellew JJ agreeing) agreed with the trial judge that ASIC officers could make use of the transcript for making an informed decision whether to charge the examinee and institute proceedings. This was regarded as flowing from ASIC’s power under s 18(2)(c) to supply a copy of the report and include a record of the examination.

141. The issue on appeal in R v OC(Oliver Curtis) (which also arises for present consideration) was whether the prosecution could have access to the compelled evidence to prepare the prosecution case. The trial judge answered that question in the negative and ordered a temporary stay in order that a new prosecution team (which had not been privy to Mr Curtis’s s 19 examination) could be assembled for the purposes of his prosecution. The appeal was allowed and the stay set aside.

142. At [108] Bathurst CJ noted that the ASIC Act expressly contemplated that use could be made of the examination. His Honour referred to s 76 of the ASIC Act which provides that a statement made in an examination is admissible in evidence against a person in a proceeding unless it is inadmissible by reason of s 68(3) (which preserves the protection against direct use if the pre-conditions in s 68(2) are met). His Honour concluded:

[119] Once it is accepted that statements made during a s 19 examination areadmissible in criminal proceedings, unless the two preconditions in s 68(2) are met, and that the time for determining whether these conditions are satisfied is at the time the statements are sought to be tendered in evidence, it follows, as a matter of necessary implication, that the CDPP officers responsible for the conduct of the proceedings are entitled to have access to the examination transcripts, not only to formulate charges, but to prosecute them. This access would enable CDPP officers to consider whether the privilege was properly claimed on any answer and whether the transcript could be tendered. Her Honour, with respect, erred in reaching a contrary conclusion.

[120] The alternative construction propounded by the respondent (see [90] above), suggesting that it was not necessarily implicit that the CDPP was entitled to have access to the transcript, as a separate “voir dire team” could be engaged by the prosecution, derives no support from the terms of the legislation. Rather, the ASIC Act, particularly s 49, in conjunction with s 68, s 76 and s 77, in my view, discloses, by necessary intendment, that if a prosecution is caused to be commenced or carried out by ASIC, the prosecutors may be given access to the transcript of a s 19 examination and, subject only to the prohibition against the direct use of self-incriminating material in s 68, can use it for the purpose of the prosecution.

143. The Court of Criminal Appeal allowed the appeal and dissolved the stay, on the basis that the prosecutor was entitled to use Mr Curtis’s s 19 examination for the purposes of the prosecution case, the question of its admissibility against him being a matter that could only be determined if and when it was sought to be tendered in the prosecution case.

Redacted Judgment [2015] NSWCCA 281

144. In Redacted Judgment the applicant was examined by the NSWCC before he was charged with murder. Investigating police were aware of the examination and had listened to part of it. Transcripts of the evidence compelled from the applicant were provided to the DPP but none of the officers of the DPP or counsel briefed for the Crown had read or accessed the applicant’s transcript.

145. In support of his application for a permanent or temporary stay of the proceedings, the applicant submitted, on the basis of X7 v NSW Crime Commission and Lee v The Queen, that his examination by the NSWCC amounted to a fundamental departure from the accusatorial system of criminal justice. He argued that the use of information obtained from his compelled evidence by the NSWCC and the police, both in connection with the investigation and the subsequent examination by the NSWCC of another witness meant that the trial would be unfair.

146. The trial judge dismissed the application. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. It held that the mere fact of a compulsory examination did not, of itself, warrant a stay of proceedings and that it was necessary to look at the consequences of the compulsory examination. The Court held that there was no prohibition on the NSWCC using the applicant’s compelled evidence for the purposes of examining another witness. The Court also found that, since the investigation was ongoing, it could not be said that the applicant’s examination was conducted for an improper purpose, even if its purpose was to tie him down to key aspects of the case so as to inform investigating police of these matters.

The present case in light of the authorities referred to above

147. The applicants have not established any breach of the companion principle in the sense of X7 v Australian Crime Commission, since no evidence has been compelled from them since they were charged. In Lee v The Queen, the investigating authority (NSWCC) was directed not to give the compelled evidence to the prosecutors, whereas in the present case the compelled evidence was already in the public domain even if s 15A did not (contrary to my view set out below) require it to be provided to them.

148. The present case shares features of R v OC (Oliver Curtis) in that, before they were charged, the applicants were subject to lawful compulsory examination, which was analysed by the relevant prosecuting authority for the purposes of laying charges. It was accepted that their compelled evidence was properly considered by the DPP and his officers for the purposes of deciding whether to lay charges under s 87 of the ICAC Act. However, there is a significant distinguishing feature in the present case in that the applicants’ compelled evidence was given in, and disseminated to, the public at large, which included any prosecutors, potential prosecutors and the DPP himself. In these circumstances, any differences between the applicable legislative regimes would not appear to be determinative.

149. I regard the reasoning in [119] of R v OC (Oliver Curtis) (extracted above) as applicable to the present case, although in that case no public disclosure of Mr Curtis’s compelled evidence was authorised.

150. The present case also shares features of the Redacted Judgment in that the applicants were compelled to give evidence on the same subject matter as their subsequent charges. They have therefore been deprived of the opportunity of holding in reserve until the commencement of the trial, the way in which they propose to defend the charges, certain forensic choices being foreclosed to them by the content of their compelled evidence. Furthermore, if they choose to give evidence in their trial, they may expose themselves to the jeopardy of a prosecution under s 87 if their evidence at trial is inconsistent with their compelled evidence (see [124] of X7 v Australian Crime Commission). I am not persuaded that this prejudice is one that ought be taken into account, since it is a legitimate prejudice. The giving of evidence under compulsion is authorised by the ICAC Act. The prejudice to the applicants from having been compelled to give evidence, on a matter in respect of which they were subsequently charged, flows from the wording of the statute itself. This very situation (that a person could be examined compulsorily and then charged about the very same matters in respect of which he or she was compulsorily examined) was specifically authorised and provided for by the ICAC Act, which also contemplated that their evidence in the public inquiry would be given in public and disseminated to the public at large and provided to the DPP.

The ICAC Act: its meaning and effect in the circumstances of the present case

151. The objects of the ICAC Act are relevant. It is plain from the objects that the publication of ICAC’s hearings and findings is crucial to the performance of its powers and functions, which include to “expose”, “prevent” and “educate”. ICAC is, in effect, akin to a permanent Royal Commission into corrupt conduct, the mandate of which is to expose what actually occurred (in some circumstances to the public at large) and recommend appropriate action in the public interest (see the summary of the legislative history of the ICAC Act in ICAC v Cunneen [2015] HCA 14; 89 ALJR 475 at [4]-[14] per French CJ, Hayne, Kiefel and Nettle JJ). Its investigations may lead to the eventual securing of criminal convictions, although its functions and objects are by no means confined to that end.

152. The ICAC Act confers power on ICAC to obtain a statement of information from a public authority or public official (s 21) and to obtain a document from any person (s 22). However, s 24 obliges ICAC to set aside the requirement (under s 21 or s 22) if the person would have a ground to resist such a requirement in a court, except on grounds associated with public interest immunity or another ground applying to a public official. Section 26 provides that if a document tends to incriminate a person and the person objects, neither the requirement to produce nor the document can be used in any proceedings (except for an offence under the ICAC Act or for the purposes of the investigation). There is, accordingly, a prohibition in s 26(2) on use (whether direct or derivative) for purposes other than the investigation itself (s 26(3)).

153. These provisions (s 21, 22 and 24) are to be contrasted with s 37 of the ICAC Act, which applies to witnesses summoned to answer questions or produce documents at a compulsory examination or public inquiry. In those circumstances, s 37 abrogates all relevant privileges in respect of answers given or documents produced. All that remains by way of protection for the examinee is a rule of evidence which makes inadmissible the answer or document in civil, criminal (except under s 87) or disciplinary proceedings as long as objection (on any ground, whether or not referable to an objection that could be taken in court) is made. Thus, an objection has evidentiary consequences because of s 37, but is not a “claim of privilege, public interest immunity or statutory immunity” in s 15A(6) of the DPP Act.

154. Section 37 is also to be contrasted with sections such as the (now repealed) s 18(5) of the NSWCC Act which protected the person not only by making the compelled evidence inadmissible in any subsequent proceedings but also by prohibiting the use of "any information, document or thing obtained as a direct or indirect consequence” of that enforced testimony in any such subsequent proceeding (considered in Rogan v Hyde (1995) 84 A Crim R 519 at 524-525. (Allen J)).

155. This construction does not leave the words “claim of privilege, public interest immunity or statutory immunity” in s 15A(6) without work to do. First, s 15A applies to law enforcement officers generally (which are defined to include police officers or members of staff of the Police Integrity Commission, the NSWCC and ICAC). Secondly, the words comprehend privileges and immunities which are not personal, such as public interest immunity (which cannot be waived) or the statutory immunity conferring immunity from disclosure in s 111 of the ICAC Act and s 80 of the Crime Commission Act 2012 (NSW). Thus s 15A(6) is concerned with the various bases on which law enforcement officers might ordinarily be either entitled, or obliged, to refuse to produce material.

156. Moreover, 15A is expressed in terms of the obligation of the law enforcement agency. The agency is not required to provide material to the DPP which is the subject of a claim for privilege, public interest immunity or statutory immunity (s 15A(6)), unless the DPP requests that it be provided: s 15A(7). This wording is inconsistent with a prohibition on the provision of compelled evidence to the DPP.

157. The DPP’s role is to determine whether criminal charges should be laid and to conduct all prosecutions. The applicants accept that, in order to determine whether to lay charges against a person for offences under s 87 of the ICAC Act, it is necessary for the DPP to see the person’s compelled evidence. In substance, the effect of the applicants’ submissions is that, once the DPP has seen the compelled evidence for the purpose of deciding whether to lay charges under s 87, or advise that they be laid, neither the DPP himself nor any of his officers who have been privy to the compelled evidence, can take any further part either in the decision whether to lay other charges or in the prosecution of the person for any charges other than those under s 87. I do not consider that such a division of functions is required by the accusatorial system of justice when considered in light of the ICAC Act and the DPP Act, at least in the present circumstances where the compelled evidence has been given in a public inquiry (in the case of the applicants’ oral evidence) or tendered in a public inquiry (in the case of extracts from their evidence in private compulsory examination).

158. In these circumstances it can hardly be supposed that ICAC would be obliged to hold back from the DPP material which is already in the public domain or that the DPP would be constrained from accessing such material, lest its very provision would disempower the DPP from using it to determine whether a person should be charged and prosecuted. I do not consider that, in these circumstances, the DPP is obliged to erect Chinese walls within the office to separate those who had seen the compelled evidence, from those who had not. ICAC’s obligation to disclose information to the DPP (including the transcripts of compelled evidence) necessarily implies that its officers have the power to disclose it and that the DPP is entitled to receive it: Australian Securities Commission v Bell at 528.

159. In my view, s 14(1) of the ICAC Act is not intended to confine the provision of information under s 15A of the DPP Act. Its wording (which confers a function) is inconsistent with the construction for which the applicants contended (that it imposes a prohibition). I regard s 14 of the ICAC Act and s 15A of the DPP Act as dealing with different matters. Section 15A is designed to ensure that all material (except that which is subject to a claim for privilege, public interest immunity or statutory immunity) germane to a prosecution, whether for or against the accused, is provided to the DPP as soon as the DPP exercises any function with respect to the prosecution of an offence (including forming an opinion whether charges ought be laid). By contrast, the purpose of s 14(1) of the ICAC Act is to empower ICAC to gather admissible evidence for the purposes of the prosecution of a charge. Thus, the DPP can use ICAC to obtain evidence (in admissible form) for the purposes of the prosecution case in support of charges to be laid, or charges already laid. As occurred in the present case, lawyers at the DPP (such as Mr Walkowiak) can issue requisitions to ICAC with a view to its officers obtaining statements from witnesses for the purposes of the prosecution case. When seen in this context, s 14 neither limits, nor otherwise affects, ICAC’s obligation of disclosure in s 15A.

160. I accept the Crown’s submission that, given the evident legislative intention that the evidence compelled by the applicants in the public inquiry be public, it would be artificial to exempt the DPP from access to such material for whatever purpose. I also accept the Crown’s argument that, once the material is in the public domain (as in the present case), the accusatorial criminal process has been altered, at least to the extent of allowing the prosecutors (and the public at large) to know what the compelled evidence is, in advance of charge. I see no warrant for a requirement that the prosecutors must obliterate any memory of the compelled evidence, once they have become aware of it, or that they must live such a cloistered life that they never become aware of what is lawfully in the public domain. Although Mr Jordan sought to draw a distinction between those who had read the compelled evidence and those who had merely heard or read extracts of it in media reports or otherwise, I do not consider that any such distinction can properly be drawn.

161. Accordingly, ICAC’s officers are obliged by s 15A to disclose to the DPP the information (including the compelled evidence at least if it has been given, or tendered, in public), since it “might reasonably be expected to assist the case for the prosecution or the case for an accused person”, within the meaning of s 15A(1). Although the evidence compelled from the applicants is not admissible (except in a prosecution under s 87 of the ICAC Act, which is not presently relevant), it must nonetheless be provided to the DPP and can, in my view, be used by him for the purposes of formulating a charge, whether under s 87 or any other law.

162. I also consider that the DPP is entitled to use the compelled evidence (at least if it has been given, or tendered, in public) to prepare the prosecution case (although I am satisfied that this has not occurred in the present case). Although there are differences between the wording of the ASIC Act (considered in R v OC (Oliver Curtis)) and that of the ICAC Act, I do not regard them as producing a different result. That ASIC can prosecute examinees (although the CDPP can take over such prosecution at any time), whereas ICAC refers matters to the DPP (for advice whether proceedings should be commenced against particular person), is not a material distinction for present purposes. Although the ICAC Act entitles examinees to take a general objection (without grounds), whereas the ASIC Act limits the objection that can be taken and makes provision for the determination which must be made at trial, I am not persuaded that this is a relevant distinction.

163. Even if the differences between the evidentiary provisions of the ASIC Act and the ICAC Act were material, the present case has the additional feature that Parliament has provided for public inquiries held by ICAC to be conducted in public. ICAC publishes transcripts of its public inquiries on the internet to be seen by all. The legislative intention that evidence can be compelled in a public inquiry from someone who may subsequently be charged is significant. It distinguishes a public inquiry conducted by ICAC from examinations conducted by the NSWCC, the ACC or ASIC, where evidence is invariably compelled in private and, if disclosed, is disclosed only to an identified class of persons, who may have a particular need to know of the evidence.

164. It follows that I am not persuaded either that the provision of the compelled evidence to the DPP was unauthorised in the present case or that there is any restriction on the use to which it can be put by the DPP in the prosecution of the applicants. The only limitation on its use is that it is inadmissible in the trial for the present charges, objection having been taken at the time ICAC compelled the applicants to give the evidence.

Whether the way in which the compelled evidence was obtained in the public inquiry ought lead to a stay of the criminal trial

165. The passages in the transcript of the compelled evidence relied upon by the applicants illustrate what might be regarded as salient features of a public inquiry conducted by ICAC. For example, the applicants were required to give evidence after they had been compulsorily examined and after other witnesses had already given evidence at the public inquiry. Although some questions were in a non-leading form, many more were not. Many questions contained summaries of evidence given by other witnesses (who were identified by name in the question) and invited comment from the applicants. Some questions included rhetorical flourishes beyond those which are usual in a court room. Questions not uncommonly contained several propositions.

166. A reading of the passages relied upon demonstrates the differences between a public inquiry in ICAC and proceedings in court. These differences are, in my view, largely (if not wholly) the product of the provisions of the ICAC Act that the rules of evidence do not apply (s 17(1)); that ICAC’s functions are to be conducted with as little formality and technicality as possible; and that public inquiries are to be conducted with as little emphasis on an adversarial approach as is possible (s 17(2)).

167. I am not persuaded that there was anything unlawful in the evidence compelled from the applicants. No improper purpose has been articulated. However, even if I were persuaded of the applicants’ contention, I am not satisfied that the appropriate remedy would be to stay the criminal trial. This Court’s jurisdiction under s 69 of the Supreme Court Act1970 (NSW) and its inherent jurisdiction over subordinate tribunals, including ICAC, (such as was invoked in Cunneen v ICAC [2014] NSWCA 421; and ICAC v Cunneen [2015] HCA 14; 89 ALJR 475) would seem to be a more appropriate (and possibly, the only) avenue of relief.

Conclusion

168. I consider that ICAC’s obligation to provide information to the DPP (including compelled evidence, at least if it has been given in public) under s 15A necessarily implies (having regard to the other statutory provisions, including s 14, 26 and 37) that the DPP is entitled, not only to use such information to provide an opinion as to whether a person should be charged and to formulate charges, but is also entitled to use such information to prosecute them. It is not necessary, for present purposes, to decide whether the same result would be achieved if the compelled evidence was not already in the public domain.

169. I am not persuaded that the applicants have made out any basis for either a permanent or temporary stay of their trial. I am not satisfied that there is any basis to exclude Mr Babb, Mr English or Mr Walkowiak from further participation in the prosecution of the applicants for the present offences. This is sufficient to determine the notices of motion and requires that they both be dismissed.

170. In these circumstances it is not necessary to determine the extent to which, if at all, Mr English’s and Mr Walkowiak’s access to the compelled evidence influenced their preparation of the prosecution case against the applicants.

171. However, lest a different view be taken as to this matter, I am obliged to make findings of fact based on the evidence before me. These are set out above in the narrative and the consideration of access and recollection. The evidence relied on by the applicants goes only as far as to suggest that it is possible that Mr English’s advice and Mr Walkowiak’s requisitions for further investigations or evidence might have been affected by the compelled evidence to which they had been privy. What emerged from the cross-examination of Mr English and Mr Walkowiak is that, in respect of each matter put to them by counsel as having been prompted by some aspect of the compelled evidence, there was another (in some cases, more probable) explanation for the inquiry or advice. Each has been conscious of the requirement imposed by Mr Fagan and reiterated by Mr Neil that they put out of their minds the compelled evidence in the conduct of the prosecution case (which they read only for the (proper) purpose of advising the DPP whether charges ought be laid). I am satisfied that, to the extent to which they are able to put out of their minds what they have read and still recall of the compelled evidence, they have done so.

Orders

172. I make the following orders:

1. Notice of motion filed in court on behalf of Mr Maitland 9 May 2016 dismissed.

2. Notice of motion filed on behalf of Mr Macdonald on 16 May 2016 dismissed.

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Amendments

13 June 2017 - Publication restriction deleted

30 March 2023 - Publication restriction removed – judgment republished

Decision last updated: 30 March 2023