R v Seller - [2013] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Ross Edward Seller; R v Patrick David McCarthy [2013] NSWCCA 42
Hearing dates: 14, 16 November 2012
Decision date: 01 March 2013
Before: Bathurst CJ at [1]; McClellan CJ at CL at [119]; Rothman J at [121]
Decision:
(1) Grant leave to appeal.
(2) Appeal allowed.
(3) The orders that the primary judge made on 17 August 2012 be set aside and in lieu thereof the motion filed by the first respondent on 27 February 2012 and by the second respondent on 28 February 2012, be dismissed.

Catchwords:
CRIMINAL LAW - grant of stay - Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) - scope of s 25A of the Australian Crime Commission Act 2002 (Cth) - whether dissemination might prejudice a fair trial.

CRIMINAL LAW - grant of stay - ACC examination transcripts disseminated to CDPP - whether dissemination of transcripts resulted in a fundamental defect in the trial process - exercise of discretion - whether a permanent stay justified.
CRIMINAL LAW - grant of stay - ACC examination transcripts disseminated to CDPP - whether dissemination resulted in a fundamental defect in the trial process - inference as to use of transcripts by CDPP - whether material justified inference.
Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 4, s 7A, s 12, s 24A, s 25A, s 30, s 59
Crimes Legislation Amendment Act 1991 (Cth)
Criminal Appeal Act 1912, s 5F
Criminal Code Act 1995 (Cth), s 135.4
Evidence Act 1995, s 90, s 137, s 138
National Crime Authority Act 1984 (Cth), s 12, s 25A, s 30
National Crime Authority Legislation Amendment Act 2001 (Cth)
Cases Cited: A v Boulton [2004] FCA 56; (2004) 204 ALR 598
A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420
AA Pty Limited v Australian Crime Commission [2005] FCA 1178; (2005) 219 ALR 666
Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258
Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257
Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Deputy Commissioner of Taxation v De Vonk [1995] FCA 994; (1995) 61 FCR 564
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Dunn v Australian Crime Commission [2008] FCA 424; (2008) 69 ATR 280
Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309
Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74; (1993) 178 CLR 477
Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470
Moevao v Department of Labour (1980) 1 NZLR 464
NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; (2008) 72 NSWLR 456
Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277
Pyneboard Pty Limited v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328
R v CB, MP v R [2011] NSWCCA 264
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Silverthorne Lumber Co v US (1920) 251 US 385
Somer v US (1943) 138 F2d 790
Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281
The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592
US v Kraus (1921) 270 F 578
Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439
Wayne v US (1963) 318 F2d 205 [cert.den 375 US 860]
Wong Sun v US (1963) 371 US 471
Woolmington v Director of Public Prosecutions [1935] AC 462
Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis
Category: Principal judgment
Parties: Regina (Applicant)
Ross Edward Seller (First Respondent)
Patrick David McCarthy (Second Respondent)
Representation: Counsel:
D J Fagan SC and P R McGuire (Applicant)
B A Coles QC and S J Buchen (First Respondent)
M A Robinson SC and P Bruckner (Second Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Applicant)
Hardinlaw (First Respondent)
Speed and Stracey (Second Respondent)

File Number(s): 2009/237509 2009/237556
Decision under appeal

Jurisdiction:

9111

Citation:

[2012] NSWSC 934

Date of Decision:

2012-08-17 00:00:00

Before:

Garling J

File Number(s):

2009/237556
2009/237509

Judgment

BATHURST CJ: Each of the respondents Patrick David McCarthy ("Mr McCarthy") and Ross Edward Seller ("Mr Seller") were charged on indictment that between about 24 May 2001 and about 30 December 2002 they conspired with each other and various other persons with the intention of dishonestly influencing a Commonwealth public official, the Commissioner of Taxation, in the exercise of his duties as a public official contrary to s 135.4(7) of the Criminal Code Act 1995 (Cth).

By orders made on 17 August 2012, the primary judge permanently stayed proceedings on the indictment and ordered that the Commonwealth Director of Public Prosecutions ("the CDPP") pay the costs of Mr Seller and Mr McCarthy on the stay applications with certain limited exceptions ("the costs order").

The basis for the stay was that the disclosure by the Australian Crime Commission ("the ACC") of certain transcripts of evidence given by Mr Seller and Mr McCarthy before the ACC compromised their right to a fair trial in accordance with "the adversarial process". The primary judge held it was not appropriate for a trial to go ahead in these circumstances because it would be "an offence to the administration of justice" (judgment at [258]-[259]).

By Notice of Appeal dated 31 August 2012, the appellant appealed against the stay ordered by the primary judge and the costs order. The appeal was purportedly brought as of right under s 5F(2) of the Criminal Appeal Act 1912. No argument was addressed on the question as to whether the reference to the Director of Public Prosecutions in that subsection included the CDPP. However, as the questions raised are of general public importance it is appropriate that to the extent necessary leave should be granted.

The legislative background

To understand the judgment of the primary judge, the issues raised on the appeal and the parties' submissions it is necessary to have regard to certain of the provisions of the Australian Crime Commission Act 2002 (Cth) ("the Act") and at least some of its legislative history.

Section 7A of the Act sets out the functions of the ACC. Of particular relevance for present purposes are s 7A(a), (b) and (c) which provide that the ACC is:

"7A(a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence;

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

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

Division 1A of Pt II of the Act deals with the performance of the functions and exercise of powers by the ACC. Section 12(1) provides as follows:

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

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

(b) the relevant law enforcement agency; or

(c) any person or authority (other than a law enforcement agency) who is authorised by or under a law of the Commonwealth or of the State or Territory to prosecute the offence."

There are two things to note about this section. First, the obligation is limited to admissible evidence. Second, the obligation includes dissemination to relevant law enforcement agencies. The expression law enforcement agency is defined in s 4 of the Act as follows:

"law enforcement agency means:

(a) the Australian Federal Police;

(b) a Police Force of a State; or

(c) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the States."

The predecessor Act, the National Crime Authority Act 1984 (Cth) ("the NCA Act") contained a similar definition of law enforcement agency. However, s 12(1) was in somewhat different terms. It provided as follows:

"12.(1) The Authority shall -

(a) in performing the functions referred to in paragraph 11(1)(b) and in sub-section 11(2), assemble any evidence of an offence against a law of the Commonwealth or of a Territory, or of an offence against a law of a State, that it obtains in the course of its investigations, being evidence that would be admissible in the prosecution of a person for that offence, and furnish that evidence to the Attorney-General of the Commonwealth or of the State or to the relevant law enforcement agency; and

(b) in performing the function referred to in paragraph 11(1)(d), endeavour to ensure that any evidence of an offence against a law of the Commonwealth or of a Territory, or of an offence against a law of a State, that is obtained in the course of investigations of a kind referred to in that paragraph, being evidence that would be admissible in the prosecution of a person for that offence, is assembled and furnished to the Attorney-General of the Commonwealth or of the State or to the relevant law enforcement agency."

However, that section was amended by the Crimes Legislation Amendment Act 1991 (Cth) which repealed the then existing s 12(1) and replaced it with a provision in substantially the same form as appears in the Act. The Explanatory Memorandum explained the amendment in the following terms:

"Schedule 2 amends subsection 12(1) of the National Crime Authority Act 1984. The amendment enables evidence collected by the NCA to be assembled and given to those authorised to prosecute Commonwealth, State or Territory offences. At present the evidence can only be given to the Attorney-General of the Commonwealth or a State or a law enforcement agency. This change will streamline procedures which were originally designed for a prosecutions system which had the Attorney-General as the central authority. Now the Commonwealth, States and Northern Territory use a separate prosecuting authority. The amendment has been recommended by the Inter-Governmental Committee for the NCA. The Committee recommended similar amendments to State and Northern Territory legislation."

Division 2 of Pt II of the Act deals with examinations. Section 24A empowers an examiner to conduct an examination for the purpose of a special ACC operation/investigation. Such an operation/investigation is defined in s 4. There is no issue in the present case as to the power of the examiner in question to conduct the examinations which occurred.

Section 25A of the Act deals with the conduct of examination. Of particular relevance are s 25A(3), (9)-(11) which provide as follows:

"25A(3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination.

...

(9) An examiner may direct that:

(a) any evidence given before the examiner; or

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

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

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

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

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

(11) The CEO must not vary or revoke a direction if to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence."

Subsections 25A(1), (7), (8), (10), (11) and (15) did not appear in the equivalent provisions in the NCA Act. Subject to that, the equivalent provisions were in substantially the same form.

Section 30 of the Act deals with the obligation to answer questions asked by an examiner. So far as relevant it provides as follows:

"30(2) A person appearing as a witness at an examination before an examiner shall not:

(a) when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement;

(b) refuse or fail to answer a question that he or she is required to answer by the examiner; or

(c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.

...

(4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:

(a) a person appearing as a witness at an examination before an examiner:

(i) answers a question that he or she is required to answer by the examiner; or

(ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and

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

(c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty.

(5) The answer, or the document or thing, is not admissible in evidence against the person in:

(a) a criminal proceeding; or

(b) a proceeding for the imposition of a penalty;

other than:

(c) confiscation proceedings; or

(d) a proceeding in respect of:

(i) in the case of an answer - the falsity of the answer; or

(ii) in the case of the production of a document - the falsity of any statement contained in the document."

The sections are to be contrasted with the corresponding provisions in the NCA Act which relevantly were in the following terms:

"30(2) A person appearing as a witness at a hearing before the Authority shall not, without reasonable excuse -

(a) when required pursuant to section 28 either to take an oath or make an affirmation - refuse or fail to comply with the requirement;

(b) refuse or fail to answer a question that he is required to answer by the member or acting member presiding at the hearing; or

...

(4) Subject to sub-sections (5), (7) and (9), it is a reasonable excuse for the purposes of sub-section (2) for a natural person -

(a) to refuse or fail to answer a question put to him at a hearing before the Authority; or

(b) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Authority,

that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate him.

(5) It is not a reasonable excuse for the purposes of sub-section (2) for a person -

(a) to refuse or fail to answer a question put to him at a hearing before the Authority; or

(b) to refuse or fail to produce a document or thing that he was required to produce at a hearing before the Authority,

that the answer to the question or the production of the document or thing might tend to prove his guilt of an offence against a law of the Commonwealth or of a Territory if the Director of Public Prosecutions has given to the person an undertaking in writing that any answer given or document or thing produced, as the case may be, or any information, document or thing obtained as a direct or indirect consequence of the answer or the production of the first-mentioned document or thing, will not be used in evidence in any proceedings against him for an offence against a law of the Commonwealth or of a Territory other than proceedings in respect of the falsity of evidence given by the person and the Director of Public Prosecutions states in the undertaking -

(c) that, in his opinion, there are special grounds that in the public interest require that answers be given or documents or things be produced by that person; and

(d) the general nature of those grounds."

These sections relatively clearly provided an immunity from both direct self-incrimination and indirect or derivative self-incrimination. However, the National Crime Authority Legislation Amendment Act 2001 (Cth) amended s 30(1)-(2) and repealed s 30(4)-(11) to insert provisions in substantially the same form as now appear in the Act. The Explanatory Memorandum stated the reason for the amendment in the following terms:

"Use immunity and self-incrimination

Proposed subsection 30(5) limits the use that can be made of certain evidence and applies if one of the situations set out in proposed subsection 30(4) exists. (Proposed subsection 30(4) re-enacts the existing circumstances in which a person may claim the privilege against self-incrimination.)

Proposed subsection 30(5) applies if:

before answering a question that the person is required to answer at a hearing before the Authority;

before producing, in answer to a summons, a document that sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; or

before producing a thing in answer to a summons;

the person claims that the answer or the production of the document or thing might tend to incriminate the person or make the person liable to a penalty.

When proposed subsection 30(5) applies, the answer or the document or thing is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than in a proceeding in respect of the falsity of the answer or the falsity of any statement in the document, as the case may be.

Proposed subsection 30(5) will mean that, in the circumstances set out in proposed subsection 30(4), the answer, document or thing, cannot be used as evidence against the person, except in limited circumstances. However, contrary to the current position, any evidence that is derived from that answer, document or thing may be used against the person. The Authority is unique in nature and has a critical role in the fight against serious and organised crime. This means that the public interest in the Authority having full and effective investigatory powers, and to enable, in any subsequent court proceedings, the use against the person of incriminating material derived from the evidence given to the Authority, outweigh the merits of affording full protection to self-incriminatory material. The proposed provision is comparable to section 68 of the Australian Securities and Investments Commission Act 1989."

Finally, at the relevant time, s 59(7) and s 59(8) provided as follows:

"59(7) The CEO may give to:

(a) any law enforcement agency; or

(b) any foreign law enforcement agency; or

(c) any other agency or body of the Commonwealth, a State or a Territory prescribed by the regulations;

any information that is in the ACC's possession and that is relevant to the activities of that agency or body if:

(d) it appears to the CEO to be appropriate to do so; and

(e) to do so would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.

(8) The CEO may, whenever it appears to the CEO to be appropriate to do so, furnish to authorities and persons responsible for taking civil remedies by or on behalf of the Crown in the right of the Commonwealth, of a State or of a Territory any information that has come into the possession of the ACC and that may be relevant for the purposes of so taking such remedies in respect of matters connected with, or arising out of, offences against the laws of the Commonwealth, of a State or of a Territory, as the case may be."

Factual background

The factual background to the application is summarised in the judgment of the primary judge. The primary facts are not controversial although a number of inferences drawn by the primary judge are disputed by the appellant.

Mr McCarthy was examined by the ACC for four days over the period 14 May 2007 to 17 May 2007, on 30 July 2007 and on 12 and 13 September 2007. Mr Seller was examined on 31 July 2007, and on 13 and 14 September 2007. The summons served on each of them required them to give evidence on matters relevant to the offences for which they were ultimately charged.

A Mr Quincy Tang, an officer of the Australian Tax Office ("ATO"), was seconded to the ACC and was present on some occasions during the examination of Mr McCarthy and on other occasions observed the examination from a separate room. His role was to provide financial analysis for the ACC in respect of the investigation into Mr McCarthy and Mr Seller. The primary judge found, and it was not disputed, that the evidence of Messrs McCarthy and Seller was of interest to him and relevant for him in cross-checking his analysis.

Mr Tang left the ACC and returned to the ATO in 2009. It is proposed he give evidence on behalf of the Crown at the trial. The primary judge's findings in respect of Mr Tang were as follows:

"[27] Mr Tang has had access to the transcripts of examination of Mr McCarthy, although he may not have accessed all of them. He has been given access to transcripts of the examinations of all other witnesses examined by the Crime Commission. Although he could not recall with precision which transcripts of Mr McCarthy's examinations he had had access to, he was able to say that he had had access to such transcripts as he had requested. The same situation applies to the transcript of the examination of Mr Seller.

[28] I am satisfied that the reality is, with respect to Mr McCarthy and to Mr Seller, that Mr Tang attended or else observed and listened to most of the examinations conducted by the Crime Commission of Mr McCarthy and Mr Seller. He had access to all of the transcripts of those examinations, and he had read some of those transcripts although the evidence does not permit a finding as to which ones. His access to the transcripts was for the purpose of undertaking his duties with the Crime Commission and ultimately to inform any of the evidence which he may give at the trials of Mr McCarthy and Mr Seller.

...

[30] After he returned to the ATO, Mr Tang viewed transcripts of a number of the examinations of witnesses. His purpose in so doing was to establish financial transactional material. He could not recall in his evidence whether this included the transcript of Mr McCarthy's and Mr Seller's evidence. On the probabilities, having regard to the nature of his ongoing duties and the content of his statements of evidence, I am satisfied that they did."

At the outset of his examination Mr McCarthy claimed privilege against self-incrimination in the manner provided for in s 30(4) of the Act. At the conclusion of his examination on 17 May 2007, the examiner gave a direction pursuant to s 25A(9) of the Act. That direction restricted distribution of the transcript of Mr McCarthy's evidence and certain documents produced by him to a number of persons or bodies including prosecution authorities. However, on the concluding day of his examination a further direction was made permitting distribution only to members of staff of the ACC and to the ATO for the purpose of its functions. In these circumstances there was, at least from that time to 22 August 2008, no authority to distribute the transcript of Mr McCarthy's evidence to the CDPP.

There had been no distribution of any part of the evidence given by Mr McCarthy prior to the direction given by the examiner at the conclusion of the examination. However, on 18 December 2007, material was provided by the ACC to the CDPP by way of a CD which included transcripts of the examinations of Mr McCarthy and Mr Seller. The distribution of Mr McCarthy's evidence was contrary to the direction made by the examiner at the conclusion of the examination.

On 22 August 2008, a delegate of the Chief Executive Officer of the ACC varied the direction made by the examiner in relation to Mr McCarthy. The variation permitted the distribution of the evidence given by Mr McCarthy in May 2007 to, amongst others, prosecution authorities. The variation was made under the power conferred in s 25A(10). The variation did not cover the evidence given by Mr McCarthy in July and September 2007.

On 7 December 2009, the transcripts of the examinations of each of Mr McCarthy and Mr Seller were made available to the CDPP in MS Word form.

On 6 March 2012, a further variation was made to the previous directions by another delegate of the Chief Executive Officer. The variation occurred after the arraignment of Mr McCarthy and, as stated above, after the information had been supplied to the CDPP. The varied direction allowed distribution to, amongst others, the prosecuting authorities and its lawyers for use in any court proceedings brought against Mr McCarthy. The varied direction stated that the restriction on the admissibility of the material in court proceedings contained in s 30(5) of the Act applied but otherwise did not limit its use.

Although the examination of Mr Seller was scheduled to commence on 31 July 2007, no evidence in fact was taken from him until 13 September 2007. Mr Seller claimed privilege against self-incrimination in the manner prescribed by s 30(4) of the Act. On the conclusion of the examination on 14 September 2007, the examiner made a direction under s 25A(9) of the Act that the evidence of Mr Seller and the documents produced by him not be distributed except to the Chief Executive Officer and staff of the ACC. The direction provided that it may be varied by the Chief Executive Officer but that such variation must not prejudice the safety or reputation of a person or the fair trial of a person who has been, or may be, charged with an offence. The direction was varied on 7 December 2007, to permit publication to:

"...any prosecution authority, the staff of such an authority, and counsel appointed by such an authority, to provide advice and in relation to the prosecution of offences for which they are responsible against Ross Seller, Patrick McCarthy, or Phillip Egglishaw."

The power relied on in the direction to make the variation was a power conferred on the Chief Executive Officer by s 25A(10) of the Act. The authorisation to disseminate was on condition that the disseminated material be securely stored and not uploaded to any electronic storage system and not further published. Contrary to this direction, the CDPP stored the transcripts electronically on a computer drive within its system.

As I indicated, the transcript of Mr Seller's evidence was provided to the CDPP on 18 December 2007. As the primary judge found, the decision to supply the information to the CDPP was made relying on the powers conferred on the Chief Executive Officer by s 59(7) of the Act. The record of decision created by the ACC and signed by the delegate of the Chief Executive Officer stated that the delegate was satisfied that the information was relevant to the activities of the CDPP.

The findings and conclusions of the primary judge

The primary judge made factual findings in the terms outlined above. In addition, he made certain findings as to the use made of the material which have been challenged on appeal.

The primary judge concluded that by 26 February 2009, the ACC, pursuant to s 12 of the Act, had provided a complete brief of evidence to the CDPP. A Mr Corkery, the CDPP officer in charge of the case, examined the brief for the purpose of determining which if any offences had been committed by Mr Seller and/or Mr McCarthy. The primary judge accepted that Mr Corkery did not read any of the transcripts of the evidence of either Mr McCarthy or Mr Seller. He also accepted that they had not been read by senior or junior counsel retained by the appellant.

In considering the extent of the dissemination of the transcripts of the evidence of Mr McCarthy and Mr Seller to officers of the CDPP, the primary judge referred to communications which indicated co-operation in the conduct of the investigation of the events surrounding the prosecution of Mr Seller and Mr McCarthy. The primary judge referred to various communications passing between the ACC and the CDPP and briefing papers supplied by the ACC to the CDPP in 2007. In particular, a briefing paper of 25 May 2007 made reference to material which had been derived from the evidence of Mr McCarthy and further information which it was hoped to be derived from his examination.

The primary judge accepted that it was unlikely that any officers of the CDPP had access to the hard copy version of the transcripts which were stored in the office of Mr Corkery. However, he concluded that the position was not the same in relation to the electronically stored version. He referred to the fact that a number of identified officers had access to the electronically stored transcripts. No evidence was led from them as to whether or not they had access and no explanation was given as to the absence of any such evidence. In these circumstances, the primary judge was not prepared to conclude that there had not been access to the transcripts in electronic form.

The ultimate conclusion of the primary judge on this issue was in the following terms:

"[125] I draw these conclusions with respect to the officers of the CDPP, other than Mr Corkery:

(a) each of the named officers were authorised to access the electronic file of the transcripts of Mr McCarthy and Mr Seller;

(b) each of the officers at Director, Senior Assistant Director, Assistant Director or Assistant Deputy Director level, except for Ms Alexandrou, had supervisory and oversight roles with respect to Ms Shouldice and Mr Corkery, whilst they were worked on Operation Polbream, including recommending or approving the charges to be preferred and prosecuted against Mr McCarthy and Mr Seller;

(c) Ms Shouldice was, at one time, the CDPP case officer who was responsible for providing advice to the CDPP with respect to Operation Polbream and also for providing advice to and liaising with the Crime Commission with respect to Operation Polbream;

(d) the officers in (b) and (c), each had an interest and duties to perform, with respect to Operation Polbream, which meant that the nature of the defence likely to be raised by Mr McCarthy and Mr Seller, and the strength of the Crown case, having regard to what Mr McCarthy and Mr Seller said, was relevant to their functions and the decisions which were made, for which they were responsible or in which decisions they had a role to play;

(e) there was no other source of information about the likely defences of Mr McCarthy and Mr Seller except the transcripts of evidence and any documents which relied upon them;

(f) I would infer, from the foregoing, that it is likely that one or more of these officers read all or part of the transcripts of Mr McCarthy and Mr Seller;

(g) the absence of evidence, which only the CDPP or the officers could provide, serves to strengthen the inference which I am prepared to draw;

(h) the legal officers and legal assistants, except for Ms Phang, who were authorised to have electronic access to those transcripts, were unlikely to have had access in the absence of a specific task being delegated to them by Mr Corkery which required them to access those transcripts;

(i) Mr Corkery denies giving any such specific tasks to any subordinate, except Ms Phang. I accept that evidence;

(j) it seems clear that Ms Phang was involved in the process of obtaining and copying transcripts for the purpose of them being provided to the solicitors for Mr McCarthy and Mr Seller, as part of the pre-trial disclosure process. Clearly, in the course of so doing, it is likely that she glanced at, and perhaps read, parts of the transcript for the purposes of ensuring that they were being correctly provided. I do not regard any such access as anything more than the minimum necessary to achieve the above task. Such access was neither meaningful nor significant. It is irrelevant for the purposes of this case."

I have already referred to the fact that the transcripts were available to Mr Quincy Tang and that it is proposed that he give evidence in the proceedings against Mr Seller and Mr McCarthy. The statements of evidence of Mr Tang proposed to be led at the trial of Messrs McCarthy and Seller were tendered at the hearing before the primary judge. His Honour reached the following conclusions in respect of that evidence:

"[136] These statements, together with the extent of the participation of Mr Tang in assisting Crime Commission officers to prepare for the compulsory examinations of Mr Seller and Mr McCarthy, leads me to conclude that Mr Tang has been one of the principal investigators of the whisky schemes, including investigating the conduct of Mr Seller and Mr McCarthy. He has been largely responsible for the compilation of the financial material which underlays an understanding of the whisky schemes and which, in large part, underlays the proof of the Crown case about the falsity of the statements made by Mr Seller and Mr McCarthy to officers of the ATO. The statements are those of an expert, the purpose of which is to objectively prove facts, against which the truth and accuracy of the statements made by the applicants will be tested.

...

[140] There is nothing apparent from the contents of his statements, which suggests that he has directly drawn specific information from the compulsory examinations of Mr Seller and Mr McCarthy as a basis, or source, of the conclusions which he has expressed in those statements.

[141] However, I would readily conclude, that having heard or having read the evidence given at the compulsory examinations, particularly the evidence about the flow charts or diagrams shown to each of Mr McCarthy and Mr Seller, which presented a complete picture of all of the steps involved in the transactions, in the interpretation of the documents with which he was provided, Mr Tang was materially assisted in the preparation of his statements of evidence.

[142] By way of an analogy, a person who is required to piece together a jigsaw puzzle, does so entirely by the process of sorting the pieces, and then fitting them together. However, if that person has, albeit for a brief period, had the benefit of seeing the entire finished picture of the jigsaw puzzle, the task of identifying the various pieces of the jigsaw and then fitting them together, is much easier, and is much more readily achieved even if the complete picture is no longer in front of them.

[143] It is not possible for me to conclude, notwithstanding the terms in which the statements of Mr Tang are expressed, that his attendance at, listening to, and reading the transcripts of evidence of the compulsory examinations of Mr Seller and Mr McCarthy, together with looking at the documents which were tendered as a part of that examination, could have been completely put out of his mind when preparing the statements. I am satisfied that his knowledge of this material has contributed in a significant although indirect way to his evidence, and the conclusions which he expresses."

The primary judge reviewed the transcripts of the evidence of Mr McCarthy and Mr Seller and made the following findings in respect of the evidence of Mr McCarthy:

"[59] This necessarily brief summary is sufficient to conclude that the compulsory examination of Mr McCarthy touched upon factual matters, the proof of which are necessary to sustain the criminal charge.

[60] The examination also covered his view, and understanding, of the nature and structure of the arrangements, including the roles and functions of each of the relevant entities, and whether the ventures were accompanied by features of dishonesty.

[61] These were matters about which Mr McCarthy had a right to silence and which engaged his privilege against self-incrimination generally, and also in respect of the specific charge which he now faces. As well, these are matters which may be relevant to any defence which he advances at trial."

Similar conclusions were reached in relation to Mr Seller:

"[79] I am satisfied that the contents of the compulsory examination of Mr Seller dealt with factual matters which were central to the charge that he has now been confronted with, and to his defence of that charge.

[80] In particular, as with Mr McCarthy, the compulsory examination covered his view of the nature and structure of the arrangements and, to a limited extent, whether there were any features of dishonesty involved with various parts of the ventures.

[81] I am also satisfied with respect to the compulsory examination of Mr Seller, similarly to that of Mr McCarthy, that the contents of his examination clearly engaged his privilege against self-incrimination, both generally and in respect of the specific charge with which he is now confronted and required him to answer questions which he, ordinarily, was entitled to decline to give answers to."

These conclusions were not challenged on appeal.

The primary judge concluded that the Act did not authorise supply of the transcripts of evidence to the CDPP. In reaching that conclusion he placed particular reliance on the decision of the majority of the Full Court of the Federal Court in Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258, and the decision of this Court in R v CB, MP v R [2011] NSWCCA 264. The primary judge drew the following conclusion from these judgments:

"[203] From all of the authorities to which I have made reference, but in particular the cases of OK and CB, I draw the following conclusions:

(a) the privilege against self-incrimination is an entrenched common law right which is deeply ingrained in the law;

(b) section 30 of the ACC Act abrogates that common law privilege;

(c) sections 30(4) and 30(5) of the ACC Act provide a limited compensation by retaining a protection against direct use of the evidence (or documents) obtained by compulsory process;

(d) section 25A of the ACC Act in general, and section 25A(9) in particular, protects against derivative use of the evidence (or documents) obtained by compulsory process where that derivative use might prejudice the fair trial of a person who may be charged with an offence;

(e) interference with justice by way of the prejudicing of a fair trial must be a practical, rather than a theoretical, reality;

(f) there is no practical reality that the course of justice and a fair trial would be interfered with, by reason only of the witness being required to answer questions, including disclosure of their defence, but only so long as an appropriate direction is in force under s25A(9) which preserves the confidentiality of the examination; and

(g) the right to a fair trial will be compromised if information relevant to a person's defence in any form, including derivative information, has been, or there was a real risk that it would be, communicated to prosecution authorities."

In these circumstances, the primary judge concluded that in the case of Mr McCarthy, the dissemination of the material was not authorised because up to March 2012 it contravened the examiner's directions, and thereafter, it was not in accordance with "the principles established in OK" (judgment at [249]). In the case of Mr Seller, the dissemination of the material was wrong because the direction of December 2007 was not authorised by the Act (judgment at [252]). The primary judge concluded that the effect was to impact adversely on a fair trial (judgment at [251]). His ultimate conclusion was expressed as follows:

"[253] The question then becomes what order, if any, ought be made was a matter of the exercise of discretion. I have found that:

(a) there has been indirect and derivative use of compulsorily obtained material;

(b) that derivative use was wrong because either it was contrary to a direction of the Examiner, or else because the relevant variation of the Examiner's direction was not authorised by the ACC Act;

(c) the transcripts of the evidence obtained during the compulsory examination contain material which would otherwise be caught by each applicant's privilege against self-incrimination, and which, but for the provisions of s 30 of the ACC Act would not be available to anyone except each applicant and their lawyer, unless each applicant waived their privilege; and

(d) the derivative use has provided the CDPP with the transcript of the examination and material derived from them. It has also assisted one of the witnesses upon whom reliance will be placed as part of the prosecution case."

In these circumstances the primary judge concluded that a permanent stay of the proceedings was appropriate. The primary judge concluded that the ACC deprived Mr McCarthy and Mr Seller of a "fair trial in accordance with the adversarial process" (judgment at [255]). This was because Mr McCarthy and Mr Seller lost their entitlement to have the contents of their examinations, in which they were obliged to forego their privilege against self-incrimination and which contained evidence relevant to their defence, kept confidential from the prosecution so that their right to a fair trial was ensured (judgment at [256]-[257]). The primary judge also concluded that a trial in those circumstances would be "an offence to the administration of justice" (judgment at [259]).

The primary judge also awarded costs against the ACC subject to certain exceptions.

The grounds of appeal

The appellant relied on the following grounds of appeal:

"Variation of non-publication direction - McCarthy

1. His Honour erred in holding that with respect to examinations of Patrick McCarthy conducted under Part II Division 2 of the Australian Crime Commission Act ('ACC Act') communication of the content of the examinations to the Commonwealth Director of Public Prosecutions ('CDPP') was 'wrong':

1.1. up to 6 March 2012 because it contravened a s.25A(9) direction made by the examiner on 13 September 2007 and

1.2. after 6 March 2012 because the variation made on that date, by the Chief Executive Officer of the Australian Crime Commission ('CEO of the ACC'), to the examiner's direction of 13 September 2007 was not authorised by the ACC Act [249].

2. His Honour ought to have held that:

2.1. the CEO of the ACC on 6 March 2012 was not prohibited by s.25A(11) from varying the examiner's non-publication direction of 13 September 2007 with respect to Patrick McCarthy;

2.2. the examiner's non-publication direction of 13 September 2007, to the extent that it remained operative up to 6 March 2012, was effectively and lawfully varied by the CEO of the ACC on 6 March 2012 pursuant to s.25A(11), to permit dissemination of the content of the examinations to the CDPP;

2.3. in the alternative to 2.1 and 2.2, the disseminations prior to 6 March 2012 of the contents of the examinations of Patrick McCarthy themselves constituted variations by the CEO of the examiner's non-publication direction made on 13 September 2007 and such variations were lawful and effective and did not contravene s.25A(11).

3. His Honour erred in holding that, in relation to the examinations of Patrick McCarthy in May, June and September 2007, the examiner's s.25A(9) non-publication direction of 13 September 2007 (which did not permit dissemination of the examination contents to the CDPP) was material to the Respondent's stay application notwithstanding the variations to that direction made by the CEO under s.25A(10) on 22 August 2008, on 10 March 2009 and on 6 March 2012 [249(a)].

Variation of non-publication direction - Seller

4. His Honour erred in holding that communications by the CEO of the ACC to the CDPP of the content of the examinations of Ross Seller remained prohibited under the examiner's s.25A(9) direction of 14 September 2007 notwithstanding that the CEO varied the said non-publication direction on 7 December 2007 to permit such communication to the CDPP [250].

5. His Honour ought to have held:

5.1. that the CEO of the ACC on 7 December 2007 was not prohibited by s.25A(11) from varying the examiner's non-publication direction of 14 September 2007 with respect to Ross Seller;

5.2. that the variation on 7 December 2007 was made lawfully and effectively and

5.3. that the dissemination thereafter by the CEO of the contents of the examination of Ross Seller to the CDPP was permitted pursuant to s.59(7) of the ACC Act.

Making and varying non-publication orders - generally

6. His Honour erred in holding that the fair trial of the Respondents would be prejudiced within the meaning of sub-sections (9) and (11) of s.25A by the communication from the CEO of the ACC to the CDPP of the content of the examinations because the CDPP would be able to make derivative use of the examinations to gain information relevant to the Respondents' defences to the charges [203(g)], [246] and [248].

7. His Honour ought to have held that:

7.1. the words 'prejudice [to] the fair trial of a person who has been, or may be, charged with an offence' in sub-ss.(9) and (11) of s.25A do not include or extend to the dissemination under s.59(7) to the CDPP of the content of examinations which have been conducted prior to the examinee being charged;

7.2. dissemination to the CDPP of the content of examinations which have been conducted prior to charges having been laid is not capable of causing "prejudice [to] the fair trial" of the examinee, within the meaning of sub-ss.(9) and (11) of s.25A, because the ACC does not provide any protection to, or immunity of, the examinee with respect to derivative use of answers given which may tend to incriminate the examinee [188].

8. His Honour ought to have held, contrary to dicta in R v CB [2011] NSWCCA 264 at paragraphs [103] and [111], that:

8.1. the statutory authorisation by the CEO of the ACC, under s.59(7), to disseminate the content of examinations to the CDPP is not capable of being limited and is not limited by the terms of s.25A(9) itself and is only limited to the extent of any direction for non-publication or limited publication actually made by an examiner under s.25A(9) and not varied or revoked by the CEO of the ACC under s.25A(11) and

8.2. the relevant principle of law limiting the actions of the ACC with respect to examination of persons concerns examinations conducted after the examinee has been charged and is to the effect that such examinations may in appropriate cases be restrained by the Court as an interference with the administration of justice in relation to the charge (Hammond v Commonwealth (1982) 152 CLR 188) and that if a s.25A(9) direction has in fact been made and remains in force preventing dissemination to the prosecution then interference with the administration of justice may not arise.

Derivative use through statements of Mr Tang

9. His Honour erred in holding with respect to Mr Quincy Tang that:

9.1. to the extent Mr Tang used or had reference to the content of the examinations of the Respondents such use was 'wrong' because it breached non-publication directions made by the examiner pursuant to s.29A(9) or because, in so far as such directions were varied on 6 March 2012 (in relation to Patrick McCarthy) and on 7 December 2007 (in relation to Ross Seller) the variations were not authorised by the Act and were invalid [253] and

9.2. Mr Tang's use of and reference to the content of the examinations was a derivative use which contravened an obligation of the examiner pursuant to s.25A(9) to prevent distribution of the content of the examinations [254] and of the CEO not to vary or revoke the examiner's direction.

10. His Honour ought to have held with respect to Mr Quincy Tang that:

10.1. any use made by Mr Tang of the contents of the examinations of the Respondent whilst he was seconded to the ACC up until 2009 and any access that he had to the contents during that time was not in breach of any non-publication direction made with respect to the said examinations;

10.2. the variations to the non-publication directions made by the CEO of the ACC on 6 March 2012 (in relation to Patrick McCarthy) and on 7 December 2007 (in relation to Ross Seller) were valid and effective;

10.3. in so far as any of Mr Tang's preparation of witness statements with the assistance of the content of the examinations of the Respondents and his provision of those witness statements to the CDPP constituted or led to a derivative use by the CDPP of the answers given in the examinations, such derivative use was permissible having regard to the variations referred to in Ground 10.2.

Findings of fact concerning derivative use

11. His Honour erred in:

11.1. finding that it was likely one or more of Mr Joliffe, Mr Murphy, Mr Shaw, Ms Ryan and Ms Shouldice (all officers of the CDPP) read all or part of the transcripts of examination of the Respondents [117], [125(b) and (c)] and

11.2. failing to have regard to the evidence of Martin Corkery that he was the person in the CDP's office responsible for the prosecution of the Respondents and that neither he nor to his knowledge anyone else within the Office had read the examination transcripts.

12. His Honour ought to have held that the Respondents failed to discharge their burden of proving that any of the CDPP officers had read or made any material use of the transcripts.

Findings of irremediable prejudice to fair trial

13. His Honour erred in holding that by reason of such departures from the requirements of the ACC Act as were found:

13.1. the Respondents' right to a fair trial had thereby been compromised [255]-[258], [261];

13.2. their trial would be an offence to the administration of justice [259] and

13.3. the trial should be permanently stayed [257], [261].

Costs

14. His Honour erred in ordering that the CDPP pay the Respondents' costs of the application.

15. His Honour ought to have held that the Court had no power to award costs against the Crown in the absence of any express or implied statutory authorisation."

The parties' submissions

A The Crown

The Crown submitted that no prejudice to a fair trial or interference with the administration of justice could be found upon the basis of decisions such as Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188. This is because such cases concern a compulsory examination of persons without the benefit of the privilege against self-incrimination after charges have been laid against them, which is contrary to the position in the present case. The Crown submitted these cases proceeded on the basis that a continuation of the examination would constitute an interference with the administration of justice and that could only occur if the acts in question (in this case the examinations and the dissemination) took place after charges had been laid. The Crown submitted that there was no independent concept of a fair trial and if the legislature had effectively abrogated the privilege against derivative use of self-incriminating material, then there was no basis for complaint about dissemination of the information to the prosecuting authorities.

The Crown placed particular reliance on the fact that in considering the phrase "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" in s 25A(9) and s 25A(11), and in construing s 59(7) and s 59(8) of the Act, it was necessary to have regard to s 30(5). The effect of s 30(5) was to abrogate any protection against, or immunity from, derivative use of self-incriminating answers given in a compulsory examination under the Act. In that context the Crown relied upon the legislative history surrounding the introduction of s 30(5) to the Act and the Explanatory Memorandum to which I have referred in pars [15] and [16] above.

The Crown accepted that the word "might" in the phrase in question qualified both the expression "prejudice the safety or reputation" and the words "prejudice the fair trial of a person who has been or may be charged with an offence". However, it submitted that the power to specify the nature of the direction meant that any direction was to be given with variable stringency having regard to the circumstances of each particular case. The Crown submitted that different directions may be called for in the case of a person charged as distinct from those in relation to a person who might be charged. It submitted that in the former case it may be necessary, consistent with Hammond supra and OK supra, to direct that incriminating material not be distributed outside the ACC. However, in the case of a person not charged, the risk of a trial being unfair would generally be avoided by a direction prohibiting publication to the press or the public at large. It submitted that such a direction would have been adequate in the present case.

So far as subs 59(7) and 59(8) of the Act were concerned, the Crown submitted that they conferred a general power of variation or revocation and were not subject to the limitation contained in the concluding phrase in s 25A(9) and s 25A(11).

The Crown pointed to the fact that the only issue in OK supra was whether an examination of a charged person could continue in circumstances where there was in fact a non-publication direction preventing publication of the contents of the examination to prosecuting authorities or the police. The Crown submitted the case did not decide that an examiner would be generally required under s 25A(9) to prevent dissemination to the prosecuting authorities, or prevent the Chief Executive Officer revoking or varying a non-publication order to that effect. Further, it submitted that OK supra did not decide the scope of the phrase in question or that it would be engaged if dissemination to the authorities would permit derivative use to be made to formulate the Crown case, to gather evidence or anticipate defences.

The Crown also pointed to the fact that CB supra was a case where a non-publication order had been made. The issue in that case was whether a stay of proceedings should be granted when an examination had continued after charge, but where the information so obtained could not be distributed to the prosecuting authorities by reason of the non-publication orders. The Court in that case declined a stay.

However, the Crown submitted that the particular passages in the judgment of McClellan CJ at CL in CB supra (with which Buddin and Johnson JJ agreed) on which the primary judge relied in reaching his conclusions, overstated the effect of s 25A(9) and s 25A(11). The Crown submitted that it does so by concluding that those subsections prohibited in all cases (including both pre and post-charge examinations), the provision of information obtained during such examinations to prosecuting authorities.

The Crown submitted that at least in the case where dissemination of the material in question predated the charge, there were strong indications in the Act that "dissemination of the content to prosecuting authorities would not, for the purpose of the Act, constitute a risk of prejudice to the fair trial of the examinee or call for a non-publication direction to prevent the prosecution receiving the material". It submitted that the legislature deliberately refrained from conferring derivative use immunity on the examinee and the conclusion contended for would, in effect, reinstate it contrary to Parliament's intention. It submitted that the interpretation was not logical because prejudice could equally result from the use of the material by the ACC. Finally, it submitted that if s 25A(9) and s 25A(11) were intended to have the suggested effect, it would have been expressly stated by the legislature.

Senior counsel for the Crown submitted at the hearing that the common law placed two restraints on the legislature freely taking away the privilege against self-incrimination. The first, it submitted, was the need for a clear statement of legislative intention: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277. The second was that in cases such as Hammond supra, removal of the privilege could lead to interference with the administration of justice. However, he submitted that it has been established that the legislature can take away the privilege with the use of clear words and that this was the position in the present case. He referred to Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486; Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 and NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; (2008) 72 NSWLR 456.

The Crown submitted that as the stay imposed by the primary judge was dependent on his incorrect construction of s 25A(9) and s 25A(11), it should not have been granted and the appeal should be allowed.

The Crown also submitted that the expression "law enforcement agency" in s 59(7) of the Act was wide enough to include the CDPP and that there was no need to read the expression to exclude that body. It submitted that the express reference in s 12(1)(c) of the Act to any person or authority authorised to prosecute an offence, in addition to the reference to law enforcement agency in s 12(1)(b), was inserted as a matter of precaution and did not affect the construction of s 59(7) for which it contended.

So far as the proposed evidence of Mr Tang was concerned, the Crown pointed out that Mr Tang had compiled the financial analysis of the transactions whilst he was seconded to the ACC. It was submitted that it was implicit in s 25A(5) that staff at the ACC were entitled to be present during the examination and that it would be surprising in these circumstances if they were prohibited from giving any evidence. At the hearing, senior counsel for the Crown submitted that all that the evidence of Mr Tang involved was an analysis of financial documentation and in those circumstances calling him would not prejudice a fair trial.

The Crown submitted that the conclusions of the primary judge as to the use made of the transcripts by officers of the CDPP were erroneous. So far as Mr Corkery's predecessor as case officer, Ms Shouldice, was concerned, it was submitted there was no direct evidence that she had read the transcripts and no evidence of anything written or said by her which indicated that she had. It was conceded that she had read briefings from the CDPP which contained secondary reference to material derived from the examinations. It submitted that the bases the primary judge identified to support his conclusion were insufficient, particularly having regard to the evidence of Mr Corkery that Ms Shouldice did not say anything to him about the contents of the transcripts.

The Crown also submitted that the primary judge did not have a sufficient basis for inferring that the transcripts had been read by other officers of the CDPP. It also pointed out that the judge made no findings as to which part of the transcripts had been read or their significance to the prosecution. It submitted that this highlighted the difficulty of finding that the dissemination from the ACC to the CDPP might prejudice a fair trial.

B Mr Seller

Mr Seller emphasised that the judgment was a discretionary one and that there was a need to demonstrate error. He pointed to the exceptional nature of the power vested in the ACC and submitted that the concluding phrases in s 25A(9) and s 25A(11) denoted a concern by the legislature to preserve both an individual's fundamental rights and the integrity of the curial process itself. He submitted that the dissemination of the compulsorily obtained evidence in advance of the prosecution compromised his right to a fair trial and was apt, absent an appropriate remedial order, to bring the administration of justice into disrepute.

Mr Seller submitted that there were two assumptions underpinning the analysis of s 25A(9) and (11) in the decision of the majority in OK supra. First, for what he (Mr Seller) described as the safeguards to be effective, they must be read as qualifying other provisions of the Act concerning the dissemination of compulsorily acquired material. Second, the safeguards will not have that effect if they are ignored. He submitted the same assumption underpinned the decision of this Court in CB supra. He also submitted that the use of the word "might" in each of the subsections indicated that the subsections were concerned with a possibility of prejudice to a fair trial, whilst the requirement to make a direction in those circumstances indicated that they were designed to eliminate the risk of such possible prejudice.

Mr Seller submitted that the primary judge did not incorrectly assume that the Act deprived the prosecution of derivative use of an examinee's answers. He submitted that the primary judge was correct in concluding that s 25A(9) protects against derivative use where it might prejudice a fair trial, and further, the right to a fair trial will be compromised where information relating to a person's defences has been communicated to prosecutorial authorities. He submitted that although a general immunity against derivative use has been abolished, the significance of s 25A(9) and (11) was unaffected by the amendment which abolished the general immunity. Further, he submitted that to limit the operation of the protection to circumstances where a charge had been laid was contrary to the express words contained in the subsections. At the hearing, senior counsel for Mr Seller submitted that there remained two protections, one contained in s 30(4) and s 30(5)(a) and (b), and the other contained in s 25A(9) and (11). He described them as two level or multilayer protections and submitted that the protections contained in s 30(4) and s 30(5)(a) and (b) did not exhaust the risk of a fair trial not occurring.

Mr Seller also submitted that s 59(7) could not authorise dissemination as the CDPP was not a law enforcement agency, which he submitted was a body concerned with the investigation and prevention of criminal offences. He submitted the CDPP was an independent body with an authority to determine whether or not to prosecute offences and a power and duty to carry forward such prosecutions. He submitted that the construction for which he contended was supported by the express reference in s 12(1)(c) of the Act to prosecution authorities in contrast with s 59(7). Senior counsel for Mr Seller submitted that the decisions of the Federal Court in AA Pty Limited v Australian Crime Commission [2005] FCA 1178; (2005) 219 ALR 666 and Dunn v Australian Crime Commission [2008] FCA 424; (2008) 69 ATR 280 to the contrary were incorrect and reached without the benefit of detailed argument on the question.

In these circumstances, Mr Seller submitted that the information should not have been disseminated and the primary judge was justified in ordering a stay. He submitted that once the information was disclosed to the CDPP, any future prosecution would necessarily involve an abuse of the Court's process. He submitted that it was impossible to now assert that such a right had not been prejudiced.

In this context, senior counsel for Mr Seller placed particular reliance on the statement in par [111] of the judgment of McClellan CJ at CL in CB supra:

"The right to a fair trial will only be compromised if information relevant to a person's defence in any form including derivative information is available to the prosecution."

However he acknowledged that the word "will" in that sentence should in fact be read as "could".

Senior counsel for Mr Seller pointed out in this context that one of the real prejudices suffered by the examinee was the inability to know what use had been made of the material. In that context he emphasised what was said by Spigelman CJ in John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 at [22]-[23] that it was an elementary right of every accused to a fair trial; that is, one fair as between prosecutor and accused.

So far as the presence of Mr Tang at the examination was concerned, Mr Seller pointed to the finding by the primary judge in par [143] of his judgment that the evidence of the compulsory examination of Mr McCarthy and Mr Seller contributed in a significant way to the evidence of Mr Tang. Mr Seller contended that this demonstrated prejudice to the respondents such that a fair trial was not possible.

C Mr McCarthy

Mr McCarthy emphasised that the provision of his evidence to the CDPP was contrary to the directions given by the examiner. He submitted the primary judge was correct in inferring the transcript had been accessed by officers of the CDPP. He pointed to the absence of evidence from relevant officers of the ACC or any other evidence of who accessed the database.

Mr McCarthy submitted that the importance of Hammond supra was the reference by Gibbs CJ to the fact that a detailed examination of a person in relation to an alleged offence is very likely to prejudice him in his defence.

Mr McCarthy pointed to the fact that the regime in s 25A of the Act is a regime specific to compulsory examinations. He submitted the protection was necessary having regard to the extensive powers conferred on the ACC.

Mr McCarthy submitted that the appellant failed to distinguish between derivative use by the ACC for the purpose of obtaining admissible evidence and derivative use by the CDPP.

Mr McCarthy accepted that Mr Tang was entitled to look at the transcripts of examination, seek documents and provide analyses. However, he submitted that Mr Tang was prevented from being a prosecution witness because his conclusions may depend on what he heard and his evidence may be tailored to negate defences.

Mr McCarthy submitted that the notions of fair trial and prejudice in the context of s 25A must have a broad operation. He submitted, relying on what was said by the High Court in Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120, that the expressions "prejudice" and "fair trial" are "used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker" (Gedeon supra at [43]).

Otherwise Mr McCarthy adopted the submissions of Mr Seller.

Consideration

(a) The factual findings of the primary judge on the use of the transcripts by the CDPP - Grounds 11 and 12 of the Notice of Appeal

It is convenient to deal with these grounds first.

I have set out the conclusions and reasoning of the primary judge in pars [30]-[33] above. I do not think he was in error in reaching his conclusion. The inference that the transcripts had been read by officers of the CDPP was available to be drawn. As the primary judge pointed out, the CDPP and the ACC were co-operating in the investigation. The briefing paper to which he referred in par [84] of his judgment set out in considerable detail the investigation into the activities of the respondents that had been conducted up to that time and an estimated dollar value of the alleged fraud committed. The briefing paper also recommended a series of charges. On 6 December 2007, the ACC wrote to the CDPP for the attention of Ms Shouldice enclosing a substantially similar updated briefing paper. The letter also sought advice as to whether the available evidence was sufficient to support charges at least one of which was similar to the charges the subject of the ultimate indictment.

It was on the following day that the non-publication orders in respect of the transcript of the evidence of Mr Seller was varied to permit dissemination to the CDPP. Further, as I indicated, one of the reasons for the exercise of the power under s 59(7) to make the transcripts available was that it was relevant to the activities of the CDPP.

Further, on 4 December 2009, a Ms Phang of the CDPP requested the ACC make a Word version of the transcripts available.

This material, in my view, is capable of justifying an inference that officers of the CDPP read material which the ACC indicated was relevant to their task. The primary judge was entitled, in these circumstances, to more comfortably draw this inference where knowledge of material to rebut that inference was only in the possession of the ACC or the CDPP and such evidence was not forthcoming: Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [34].

It follows, in my opinion, that Grounds 11 and 12 of the Notice of Appeal are not made out.

(b) The scope of s 25A - Grounds 1 - 9

Fundamental to the Crown appeal was its submission that in circumstances where derivative immunity had been abolished, pre-charge distribution of examinations of potential accused to prosecutorial authorities could never prejudice a fair trial.

I agree with the Crown's submission that cases such as Hammond supra do not directly assist the respondents in the present case. What was decided in that case was that once it was accepted that the plaintiff will be bound to answer questions designed to establish that he is guilty of an offence with which he is charged, there is a real risk that the administration of justice would be interfered with: Hammond supra at 198 per Gibbs CJ, with whom Mason J agreed. The principle as stated in that case, in my view, is dependent on court proceedings being in existence as there can be no interference with the administration of justice unless and until that occurs. However, it is relevant to the present case that the reason for the interference was the likelihood that any answers would prejudice the defence of the examinee at the trial. In Hammond supra at 198, Gibbs CJ stated the position in the following terms:

"Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence."

See also Deane J at 206.

The reason such an examination in the case of a charged person constituted an interference with the administration of justice was restated by Gibbs CJ in Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 at 294:

"In the absence of binding authority the matter must be approached from the standpoint of principle. If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt. Moreover the existence of such a power tends to lead to abuse and to 'the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice'."(Citation omitted)

Notwithstanding, it is well established that the legislature is entitled to abrogate the privilege: Sorby supra at 294-295, 300; Pyneboard Pty Limited v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 at 341; Hamilton supra; Daniels supra at [11]. The position was summarised by Mason J in Hamilton supra at 494 in the following terms:

"It is plain that an examination under s.541 while charges are pending may expose the witness to the risks mentioned. To the extent only that under the section rights of an accused person are denied and protections removed, an examination may even amount to an interference with the administration of criminal justice. But it is well established that Parliament is able to 'interfere' with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked: see Hammond v. The Commonwealth; Sorby. There has been a long history of legislation governing examinations in bankruptcy and under the Companies Acts which abrogate or qualify the right of the person examined to refuse to answer questions on the ground that the answers may incriminate him."(Citations omitted)

Further, it is clear in my opinion that the legislature has abrogated the privilege against indirect or derivative self-incrimination in the present case. Although s 30 of the Act does not expressly do so, having regard to the repeal of the protection against such use contained in s 30(5) of the predecessor legislation, such immunity has been abrogated by necessary implication. Although it is correct that a clear expression of legislative intent is required to take away a common law right, such an expression of intention can arise by necessary implication: Sorby supra at 305.

The conclusion that I have reached from a consideration of the words of the Act is consistent with the statement of legislative purpose referred to in the Explanatory Memorandum, which I have extracted in par [16] above. This interpretation is consistent with the interpretation placed on the section by Weinberg J in A v Boulton [2004] FCA 56; (2004) 204 ALR 598 at [91]-[125], affirmed on appeal in A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 at [65]-[72]. I would follow that decision unless convinced it was plainly wrong. I am not so convinced. To the contrary I believe it is correct.

In Boulton supra, Weinberg J rejected the submission that the principle stated in Hammond supra at 198, should be extended to persons about to be charged. He pointed out there was no certainty that a person about to be charged would be charged, and further, that there could not be an interference with the administration of justice or contempt of court when proceedings were not on foot: Boulton supra at [129]-[136]. I agree, but that does not deal with the question of dissemination of an examination which was held or the scope of s 25A of the Act. Boulton supra was an application for a declaration that the applicant was entitled to refuse to answer questions at an examination on the grounds they might incriminate him notwithstanding the provisions of s 30. No issue concerning s 25A of the Act arose.

As the primary judge pointed out, s 25A of the Act has been the subject of judicial consideration by the Full Court of the Federal Court and by this Court. Each of those cases concerned charged examinees in respect of whom non-publication orders had been made. In OK supra, the examinee sought to restrain any further examination. The minority judge, Spender J, would have made such an order, but the majority, Emmett and Jacobsen JJ, declined to do so expressing the view that s 25A provided adequate protection to the charged person.

The majority in OK supra took the view that there was an obligation on the examiner to give a direction where the failure to do so might prejudice the fair trial of a person charged with an offence. In addition, the Chief Executive Officer of the ACC was obliged not to vary such a direction if the variation had that effect. Their Honours stated the position in the following terms:

"[75] Under s 25A(9), an examiner may direct that any evidence given before the examiner 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 fair trial of a person who has been, or may be, charged with an offence. A person who makes a publication in contravention of a direction given under s 25A(9) is guilty of an offence. Under s 25A(10), the CEO may vary or revoke a direction under s 25A(9). However, the CEO must not vary or revoke a direction if to do so might prejudice the fair trial of a person who has been, or may be, charged with an offence." (Emphasis in original)

Their Honours stated that the purpose of s 25A was to manage the risk of prejudice to a fair trial. In that context they made the following remarks:

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

...

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

The majority in OK did not differentiate between the position of a person charged or a person who may be charged. That is consistent with the words of the section. However, it was not necessary for the Court to consider what might prejudice a fair trial of a person who had not been charged but who might be charged in the future, or whether the abrogation of the privilege against indirect or derivative self-incrimination coupled with the limited protection offered by s 30(4) and (5) had any effect on the obligation to give a direction under s 25A(9) and (11).

Importantly, their Honours held that the powers and obligations imposed by s 12(1) on the Chief Executive Officer and the Commission, and the power of dissemination granted to the Chief Executive Officer by s 59(7), must be read subject to any direction given under s 25A(9): OK supra at [108].

CB supra concerned an application for a stay of proceedings by persons whose examination had continued after charges had been laid but whilst a direction under s 25A was in place.

In CB supra, McClellan CJ at CL (with whom the other members of the Court agreed) expressed his agreement with the opinion of the majority in OK. In particular, he agreed that the powers and duties under s 12 and the power conferred on the Chief Executive Officer under s 59(7) were subject to any direction under s 25A(9): CB supra at [110]. His Honour went on to make the following remarks:

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

...

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

It is important to note that in par [111] of his judgment in CB supra, his Honour did not distinguish between the position pre-charge and post-charge.

At the end of the day s 25A must be construed having regard to the words used taking into account its legislative history and context: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 31; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 at [39]. The parties accepted that the word "might" qualified both limbs of the concluding phrase of s 25A(9) and s 25A(11); "the safety or reputation of a person" and "the fair trial of a person". The word "might" in those circumstances means a real risk as distinct from one that is remote or fanciful: cf Hammond supra at 196.

The more difficult question is what constitutes prejudice to a fair trial for the purpose of the subsection. The concept is not capable of precise definition. In the passage of Sorby supra cited in par [78] above, Gibbs CJ suggested a fair trial would be compromised if a person was obliged to incriminate him or herself.

In Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74; (1993) 178 CLR 477 at 501, Mason CJ and Toohey J, citing with approval the principle expressed by Viscount Sankey in Woolmington v Director of Public Prosecutions [1935] AC 462 at 481-482, stated that it was a fundamental principle of the common law that the onus rests on the Crown of proving guilt beyond reasonable doubt, which is complemented by "the elementary principle that no accused person can be compelled by process of law to admit the offence with which he or she is charged". However, their Honours had reservations that the protection against production of incriminating books and documents was an essential element in the accusatorial system of justice: Caltex supra at 503. Their Honours also made it clear that the principle could be abrogated: Caltex supra at 503. McHugh J, at 545, cited three justifications for the privilege which were consistent with it being conducive to a fair trial. The first was the need to protect human dignity and freedom. In respect of that justification, he made the following remarks at 546:

"This justification is closely associated with concern at the possibility of abuse of the power by the Crown which, as I have pointed out, was the historical reason for the privilege. But the desire to protect the human dignity of the accused is a separate and important justification of the privilege. A rule which requires the prosecution to prove the guilt of an accused in the course of a judicial proceeding without reliance on his or her incriminating answers compulsorily obtained ensures that the prosecution must treat the accused as an innocent person whose rights as a human being must be respected. The 'show trials' of the totalitarian state are hardly possible in a system where the accused cannot be compelled to incriminate him or herself and the plea of not guilty at the commencement of the trial puts the Crown to proof of every issue and entitles the accused to a presumption of innocence until a guilty verdict displaces that presumption." (Citations omitted)

His Honour also stated that a further justification for the privilege was that it maintained the integrity of the accusatorial system by forcing the prosecution to rely upon independent evidence rather than the self-incrimination of the accused.

Deane, Dawson and Gaudron JJ dissented on the question of whether a corporation was entitled to privilege against self-incrimination. At 527, their Honours cited with approval the passage from the judgment of Gibbs CJ in Sorby supra, which I have referred above in par [78]. Their Honours also made the following comments at 532:

"The privilege against self-incrimination confers an immunity which is deeply embedded in the law. In the end, it is based upon the deep-seated belief that those who allege the commission of a crime should prove it themselves and should not be able to compel the accused to provide proof against himself."(Citations omitted)

See also Deputy Commissioner of Taxation v De Vonk [1995] FCA 994; (1995) 61 FCR 564.

In Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470, [74], Spigelman CJ emphasised that the High Court had not recognised the right to a fair trial as a freestanding right. Nevertheless, in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, at least four members of the Court seemed to take the view that although there had been no attempt to list exhaustively the attributes to a fair trial and that the concept was one which was impossible to formulate exhaustively in advance, nonetheless the right was ingrained in the legal system of this country: Dietrich supra at 301 (Mason CJ and McHugh J), 327-328 (Deane J), 353 (Toohey J).

In Nutricia supra, Spigelman CJ, with whom Hidden and Latham JJ agreed, pointed out that the judgment of Deane, Dawson and Gaudron JJ in Caltex supra on this issue was not affected by their conclusion that self-incrimination immunity was available to a corporation. His Honour, after referring to Caltex supra, made the following remarks:

"[155] The accusatory system is, in my opinion, a fundamental element of our traditional method of determining criminal guilt. A public authority which formally alleges criminal conduct by a person must prove it. As recognised in the reasons of Mason CJ and Toohey J set out at 474 [67]-[68] supra and the observations of Deane, Dawson and Gaudron JJ set out at 490 [153] supra, the accusatory system is not co-extensive with the privilege against self-incrimination. It is derived, as many other aspects of our criminal procedure are derived, from the recognition of the imbalance of power between the State and its citizens. That imbalance extends to corporations."

His Honour, however, concluded that indirect or derivative use of material compulsorily obtained was not necessarily sufficient to constitute "a relevant alteration or abridgment of the accusatory system". He stated the position was reasonably clear where derivative use impinges on a rule of substantive law such as privilege against self-incrimination, but the accusatory system was not such a rule: Nutricia supra at [164]-[165]. At [172], he considered the issue of derivative use raised questions of fact and degree. He also expressed the view at [124] and [134]-[135] that the commencement of proceedings usually makes a critical difference to the weight to be given to the public interest in the enforcement of the regulatory scheme. However, at [102], his Honour emphasised that the principle of a fair trial was not engaged in that case.

Having regard to these authorities, it would seem to me that if the privilege against indirect or derivative self-incrimination had not been abrogated, s 25A(9) and s 25A(11) would require a direction to be made prohibiting the dissemination of self-incriminating material to prosecuting authorities both in the case of a person charged and a person who might be charged. This is because the use of such material by the Crown might prejudice a fair trial in the sense discussed by Gibbs CJ in Hammond supra and Sorby supra, and by the members of the High Court in Caltex supra in the passages to which I have referred above. Prior to the 2001 amendments, the Act provided two safeguards to a person being examined; first, that the undertaking provided for in s 30(5) be given and, second, the requirement for a direction under s 25A(9).

The question remains whether the amendment to s 30, which had the effect of abrogating the privilege against indirect incrimination, leads to the conclusion that a fair trial for the purpose of s 25A of the Act could not be compromised by the disclosure of direct or indirect incriminating material to prosecuting authorities. In these circumstances the question is whether the only protection to which an accused or potential accused is entitled is that, at least in the case of answers given and in respect of some documents, the material would not be admissible in evidence. The Crown argued this was the effect of the amendment, at least when the material was disseminated prior to a charge being brought.

I do not agree. Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments: Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 463; Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis at [7.23]. However, it does not seem to me that the amendment to s 30 compels a conclusion that s 25A(9) has no application in the case of dissemination of self-incriminating material to prosecutorial authorities.

As I indicated, the legislation as originally enacted contained two safeguards, the first in the original s 30 and the second in s 25A. As was said in OK supra at [109], the object of s 25A was to preserve a statutory safeguard to the right to a fair trial. If it was intended that the amending legislation was to take away that right, such an intention in my opinion, would need to have been clearly expressed: Potter supra at 304.

That does not mean that s 25A would prohibit all derivative use of the material. So, for example, I do not believe a fair trial generally will be prejudiced by the use of information obtained during the course of an examination to obtain admissible evidence. Thus, answers which would tend to indicate the availability of admissible evidence could properly be used for this purpose. For example, in cases such as the present this may include the location of bank accounts. Further, it does not seem to me that the use by the prosecution of documents produced during the course of an examination which supported the Crown case, usually would compromise a fair trial. However, the question of whether derivative use of such material could have that effect will always depend on the material in question and the circumstances of its use.

This in my opinion is consistent with what was said by Mason CJ and Toohey J in Caltex supra at 503, and by Spigelman CJ in Nutricia supra at [164]-[174] (see pars [93] and [96] above). It is also consistent with what was said by McClellan CJ at CL in CB supra at [99]. It also means that s 25A would not preclude the ACC from carrying out the investigatory functions imposed on it by s 7A and s 12 of the Act.

The position is different in my opinion if the provision of the material in question discloses defences or explanations of transactions by the accused which he or she may raise at a trial, and possibly evidence or information which would tend to show that documents or transactions apparently regular on their face in fact tend to support the proposed charges. This would be contrary to the principles stated by Gibbs CJ in Sorby supra, and by Deane, Dawson and Gaudron JJ in Caltex supra, that the onus is on the Crown to prove its case and that the prosecution must prove it without reliance on incriminating answers. To provide to prosecutorial authorities material compulsorily obtained relating to such matters could compromise a fair trial in accordance with these principles.

As McClellan CJ at CL pointed out in CB supra at [111], the principles are the same whether the material is provided before or after charge. The risk to a fair trial as envisaged by s 25A(9) and (11) is the same irrespective of when charges are brought. In the case of pre-charge dissemination the risk will only materialise when charges are in fact brought. That does not mean that courts may not take a different approach in assessing what, if any, relief should be given if the dissemination is pre or post-charge. It is simply to say that the statute itself looks in each case to possible prejudice to a fair trial, and the requirement of a direction does not differentiate between pre and post-charge dissemination.

Two matters must be emphasised. First, it is impossible to state generally the nature and type of dissemination which might prejudice a fair trial. It will depend in all cases on the nature of the material to be disseminated, the function of the person or body to whom the material is to be disseminated and in some cases the timing of the dissemination. Secondly and importantly, s 25A(9) and s 25A(11) of the Act are directed to the question of whether the material might prejudice a fair trial. Any relief given as a result of dissemination contrary to a direction or in circumstances where a direction should have been given, would depend upon whether in fact the dissemination has compromised the accused's rights to a fair trial and what steps are necessary to alleviate the position. I do not understand McClellan CJ at CL to be saying anything different in pars [111] and [128] of his judgment in CB supra. In particular, I do not understand him to say that in all cases where information relating to a defence is furnished to prosecutorial authorities, a stay should be granted. If that is what his Honour was saying, I would respectfully disagree.

In each of OK supra and CB supra, the Court held the power in s 59(7) of the Act was subject to a direction given pursuant to s 25A(9). I respectfully agree for the reasons given in those cases.

Applying these principles, the primary judge's findings concerning the nature of the material supplied to the CDPP justified his conclusion that dissemination to the CDPP might prejudice a fair trial and that it should not have taken place having regard to the requirements of s 25A(9). This relates, in particular, to the primary judge's conclusions in pars [60] and [61] in relation to Mr McCarthy and his conclusions in pars [79] and [81] in relation to Mr Seller.

In these circumstances it is unnecessary to deal with the argument that the CDPP is not a law enforcement office for the purpose of s 59(7) of the Act.

(c) Should a stay have been granted?

As I have stated, the fact that dissemination took place in contravention of a direction or in circumstances where a direction should have been given, does not automatically entitle the accused to a stay. The principles on which a permanent stay is granted are set out in the judgment of McClellan CJ at CL in CB supra and it is unnecessary to repeat them. I would merely add what was said by Mason CJ in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 30, where the Chief Justice indicated his agreement with Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at 482 that the justification for a stay is to prevent the court process being employed in a manner inconsistent with the recognised purpose of the administration of criminal justice and so constituting an abuse of process. Further, a stay will only be granted in an extreme case and the fundamental defect which warrants a stay must be such that there is nothing a trial judge can do to relieve against its unfair consequences: The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605.

The primary judge concluded at [258] that the conduct of the ACC and the CDPP in disseminating and reading the material deprived the respondents of the protection which the law ensured, such that any trial would not be fair and so a stay should be granted.

With the greatest respect to his Honour, he erred in the exercise of his discretion in failing to consider whether in fact the dissemination of the material and its reading by some officers of the CDPP resulted in a fundamental defect in the trial process such that a stay should be ordered. The primary judge, whilst correctly concluding that there was a risk of prejudice such that a direction should have been given, did not consider whether such prejudice had in fact occurred. It is apparent from the conclusion in par [203] of his judgment that he took the view that a stay should be granted whenever there was communication of a person's defence in any form including derivative information to prosecutorial authorities, or where there was a real risk that such communication would occur: judgment at [203](g). It may be that the primary judge in reaching this conclusion was following what he perceived to be the reasoning in par [111] of the judgment in CB supra. As I indicated, I do not believe that that was what was being said in par [111] of the judgment in CB supra, and if it was, I do not believe it to be correct.

In the present case Mr Corkery has been the case officer since 2008. The primary judge accepted that he did not read the transcripts in carrying out his functions as case officer. Mr Corkery also said that he was not told anything about the content of the examinations by his predecessor Ms Shouldice. It was not suggested to Mr Corkery that any of his superiors referred to in par [125](b) of the judgment of the primary judge discussed the transcripts with him. Further, the primary judge accepted that counsel retained by the CDPP have not had access to the transcripts or any information concerning their contents.

In these circumstances, there was no evidence before his Honour to justify his conclusion that the trial would suffer from a fundamental defect as a result of the delivery of the transcripts to the CDPP. Further, there is no evidence to suggest use will be made of the transcripts in the future. In these circumstances the delivery of the material to the CDPP and the finding by the primary judge that one or more of certain officers may have read the transcripts does not justify a permanent stay.

There remains the evidence proposed to be given by Mr Tang. I have considered this evidence and it consists of no more than an analysis by an accountant of the financial consequences of certain transactions evidenced in documents considered by him. Even if it be accepted that Mr Tang derived some form of improper advantage from hearing the evidence of Mr McCarthy and Mr Seller and seeing their transcripts, this would not justify a permanent stay. At most it would lead to the exclusion of his evidence. That is a matter for the trial judge to consider.

In these circumstances the appeal should be allowed and the stay granted by the primary judge be set aside. It follows that irrespective of whether the primary judge had power to make the costs order the subject of Grounds 14 and 15 of the Notice of Appeal, that order should also be set aside.

I should add that it would not be appropriate for the CDPP to make any use of the transcripts in the future conduct of this case. If I were of the opinion that there was a threat that this would occur, I would have made the setting aside of the stay subject to an undertaking by the Director that no further use would be made of them. However, in the circumstances, I do not consider this to be necessary.

Orders

The orders I would make are as follows:

1 Grant leave to appeal.

2 Appeal allowed.

3 The orders that the primary judge made on 17 August 2012 be set aside and in lieu thereof the motion filed by the first respondent on 27 February 2012 and by the second respondent on 28 February 2012, be dismissed.

McCLELLAN CJ at CL: I agree with the orders proposed by the Chief Justice for the reasons he gives.

The Chief Justice is correct in his understanding of [111] and [128] of my judgment in R v CB which he discusses at [106] and [112] of his judgment. However, I accept that my remarks in R v CB may have been more readily understood if I had used the word "could" rather than "will" when speaking of the circumstances in which the right to a fair trial may be compromised.

ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of the Chief Justice and I agree with the orders he proposes.

I also agree with the reasons given by the Chief Justice as to why, in the circumstances of this case, a permanent stay of proceedings should not have been granted (see [110] and following).

Otherwise, I agree generally with the reasons of the Chief Justice and would seek to add some comment on some aspects. It is unnecessary to reiterate the facts or the legislative background to these proceedings. I use the same abbreviations as the Chief Justice has used.

The Act is not concerned, other than peripherally, with the conduct of criminal trials. Nor has the legislature sought to constrain the power or jurisdiction of the Supreme Court (or any other court) to ensure a fair trial. The Act primarily concerns the investigation of suspected criminal conduct. The provisions abrogating the right to silence are to render more efficacious that primary purpose. The provisions empowering the Commission to prohibit or qualify publication of material obtained compulsorily during the investigative process seek to limit the unfairness that the process, by the abrogation of that right, may cause a subsequent trial.

It is in that context that the relationship between the abrogation of the right to silence under the Act and the power or jurisdiction of a court to make orders preventing an unfair trial must be considered. The Act does not affect the Court's power or jurisdiction over the curial process. Rather, it provides a mechanism by which the Commission can act to ameliorate potential unfairness in the curial process, the final determination of which rests with the Court.

Further, if, in contravention of an order of the Commission restricting publication, a prosecuting authority were to obtain and utilise material, a court would need to deal with any tender of the material (or derived material) under the provisions of s 138 of the Evidence Act 1995. Even if the Commission were to permit a prosecuting authority to obtain material and there were no unlawfulness or impropriety in its receipt, a court may, nevertheless, need to deal with the tender of material under one or more of the discretionary exclusionary provisions in the Evidence Act (for example, s 90, s 137).

In other words, without qualifying the comments of the Chief Justice at [106], the primary consideration of a court in determining whether to take steps to prevent or to prohibit an unfair trial is the effect of the dissemination of the acquired material on the trial. The effect may be identical whether or not there is a contravention of a non-publication order and does not depend upon a contravention. If there were a contravention, then the court that deals with the alleged unfairness has an additional layer of discretion to exercise, but the ultimate question, as to whether or not to grant a stay, remains the same.

On my analysis, the Act does not affect the exercise of discretion of a court in granting a permanent stay. It is not for the Commission (or any of its officers) to determine, in a manner that would bind or affect the court, whether a publication or use of material would or might lead to an unfair trial.

The legislature in enacting these provisions has not abrogated or affected the power or jurisdiction of the court to grant a stay. It has abrogated the right to silence for the purpose of the Act and implemented provisions that are intended to prevent a trial from miscarrying.

It is also in that context that the principle of construction or presumption that Parliament does not intend to modify or abrogate fundamental rights must be approached. As stated by the Chief Justice, the rationale for that approach was expressed by the High Court in Potter v Minahan at 304. This rationale was reiterated in Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 18 (per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ), Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437 (per Mason CJ, Brennan, Gaudron and McHugh JJ) and Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309. In the last mentioned judgment, Gleeson CJ, after reciting the passage in Coco, said:

"[21] The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law" without expressing its intention with "irresistible clearness". In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law."

The judgment of Gleeson CJ in Electrolux went on to recognise that, in the legislation there being examined, the common law rights were of a kind frequently modified by statute. Such is not the situation in this appeal. I would, in those circumstances, take the view that any abrogation of common law rights in the Act would require express words or words of necessary intendment. I understand the Chief Justice's reasons at [80] to be to that effect, and agree with his conclusion therein, because of the legislative history described by the Chief Justice and the context of a discretion in the Court, unaffected by the legislation.

There may be circumstances, not yet encountered, where the abrogation of rights and the consequent unfairness is so fundamental as to involve issues arising under Chapter III of the Constitution. That is not the case here. Otherwise, I agree that the legislature always retains the capacity to abrogate rights.

I comment on some other matters of detail. First, I agree with the conclusion of the Chief Justice as to the availability of inferences to which he refers at [74]. The drawing of the inference by the primary judge was available on the evidence adduced. It did not require proof beyond reasonable doubt. Further, it is an inference drawn against the Crown: see RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at [22], [27] and [28].

Secondly, I take the view that it is unnecessary, in the present case, to express a view as to material that would not be prejudicial to a fair trial on any general basis. Each case will depend upon its own facts. At [102], the Chief Justice expresses a tentative view. I leave such an issue for another occasion.

The reason for the foregoing qualification is that ultimately it may not be the disclosure of the defence, per se, that causes the prejudice, but the disclosure of material (whether or not admissible, or whether of a state of mind, or other fact incapable of independent proof) the effect of which is to render the Crown case able to be proved, where, otherwise, it would not be. It will be a matter initially for the trial judge, on a case-by-case basis, to determine whether sufficient unfair prejudice is created, whether any exceptional orders are warranted and, if so, which orders.

Lastly, I comment on derivate use privilege and the documents in this case. In my view, the use of the testimony at ACC, if used, would have been only to facilitate the discovery of the money trail or its confirmation. As the primary judge put it (at [142]), it enabled the jigsaw puzzle to be completed more easily.

The assumption in the primary judge's analogy is that all of the pieces of the puzzle are available and, without the ACC testimony, the puzzle could have been solved by the application of sufficient time, energy and intelligence. Even in the United States, where derivative use privilege (more colourfully designated Fruit of the Poisonous Tree Doctrine), derived from illegal search, has constitutional sanction, there are long-standing exceptions to its application in circumstances including inevitable discovery (expounded in Somer v US (1943) 138 F2d 790; Wayne v US (1963) 318 F2d 205 [cert.den 375 US 860] or independent source (see Silverthorne Lumber Co v US (1920) 251 US 385), or where the material is significantly distinguishable from the illegal discovery (see Wong Sun v US (1963) 371 US 471). In my view, the discovery of the money trail was inevitable, given that all of the documents had already been independently obtained. A similar approach has been taken in the United States: see US v Kraus (1921) 270 F 578.

I reiterate my agreement with the orders proposed by the Chief Justice and, subject to the foregoing, with his reasons therefor.

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Decision last updated: 01 March 2013

Medium Neutral Citation:	R v Ross Edward Seller; R v Patrick David McCarthy [2013] NSWCCA 42
Hearing dates:	14, 16 November 2012
Decision date:	01 March 2013
Before:	Bathurst CJ at [1]; McClellan CJ at CL at [119]; Rothman J at [121]
Decision:	(1) Grant leave to appeal. (2) Appeal allowed. (3) The orders that the primary judge made on 17 August 2012 be set aside and in lieu thereof the motion filed by the first respondent on 27 February 2012 and by the second respondent on 28 February 2012, be dismissed.
Catchwords:	CRIMINAL LAW - grant of stay - Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) - scope of s 25A of the Australian Crime Commission Act 2002 (Cth) - whether dissemination might prejudice a fair trial. CRIMINAL LAW - grant of stay - ACC examination transcripts disseminated to CDPP - whether dissemination of transcripts resulted in a fundamental defect in the trial process - exercise of discretion - whether a permanent stay justified. CRIMINAL LAW - grant of stay - ACC examination transcripts disseminated to CDPP - whether dissemination resulted in a fundamental defect in the trial process - inference as to use of transcripts by CDPP - whether material justified inference.
Legislation Cited:	Australian Crime Commission Act 2002 (Cth), s 4, s 7A, s 12, s 24A, s 25A, s 30, s 59 Crimes Legislation Amendment Act 1991 (Cth) Criminal Appeal Act 1912, s 5F Criminal Code Act 1995 (Cth), s 135.4 Evidence Act 1995, s 90, s 137, s 138 National Crime Authority Act 1984 (Cth), s 12, s 25A, s 30 National Crime Authority Legislation Amendment Act 2001 (Cth)
Cases Cited:	A v Boulton [2004] FCA 56; (2004) 204 ALR 598 A v Boulton [2004] FCAFC 101; (2004) 136 FCR 420 AA Pty Limited v Australian Crime Commission [2005] FCA 1178; (2005) 219 ALR 666 Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258 Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 293 ALR 257 Daniels Corporation International Pty Limited v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Deputy Commissioner of Taxation v De Vonk [1995] FCA 994; (1995) 61 FCR 564 Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Dunn v Australian Crime Commission [2008] FCA 424; (2008) 69 ATR 280 Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; (2004) 221 CLR 309 Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74; (1993) 178 CLR 477 Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486 Hammond v The Commonwealth [1982] HCA 42; (1982) 152 CLR 188 Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 John Fairfax Publications Pty Limited v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 Lodhi v R [2007] NSWCCA 360; (2007) 179 A Crim R 470 Moevao v Department of Labour (1980) 1 NZLR 464 NSW Food Authority v Nutricia Australia Pty Limited [2008] NSWCCA 252; (2008) 72 NSWLR 456 Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 Pyneboard Pty Limited v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 R v CB, MP v R [2011] NSWCCA 264 RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 Silverthorne Lumber Co v US (1920) 251 US 385 Somer v US (1943) 138 F2d 790 Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281 The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 US v Kraus (1921) 270 F 578 Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 Wayne v US (1963) 318 F2d 205 [cert.den 375 US 860] Wong Sun v US (1963) 371 US 471 Woolmington v Director of Public Prosecutions [1935] AC 462
Texts Cited:	Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) LexisNexis
Category:	Principal judgment
Parties:	Regina (Applicant) Ross Edward Seller (First Respondent) Patrick David McCarthy (Second Respondent)
Representation:	Counsel: D J Fagan SC and P R McGuire (Applicant) B A Coles QC and S J Buchen (First Respondent) M A Robinson SC and P Bruckner (Second Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Applicant) Hardinlaw (First Respondent) Speed and Stracey (Second Respondent)
File Number(s):	2009/237509 2009/237556
Decision under appeal	Jurisdiction: 9111 Citation: [2012] NSWSC 934 Date of Decision: 2012-08-17 00:00:00 Before: Garling J File Number(s): 2009/237556 2009/237509