R v Will
[2017] ACTSC 356
•29 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Will |
Citation: | [2017] ACTSC 356 |
Hearing Dates: | 28 February, 1 and 2 March 2017 |
Submissions Dates: | 14, 27 February, 14, 27 June, 26 July, 11 September 2017 |
DecisionDate: | 29 November 2017 |
Before: | Refshauge J |
Decision: | 1. The application for a stay is dismissed. 2. The parties be heard as to the consequential orders to be made. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – permanent stay of the proceedings – compulsory examination of the accused by Australian Crime Commission before charged – examination transcripts provided to prosecutors – derivative use of examination material – privilege against self-incrimination – whether examination lawful – whether use of evidence for another trial lawful – whether accused deprived the right of a fair trial – whether an abuse of process to be charged following assertion accused would not be prosecuted if evidence given – whether improper or unlawful for investigating officers to be present at examination – whether a stay is justified if an abuse of process – application dismissed – stay not granted – necessary precautions ordered for trial not to suffer a fundamental defect ADMINISTRATIVE LAW – STATUTORY AUTHORITY – Investigation of organised crime – outlaw motorcycle gangs – power of compulsory examinations – accused compulsorily examined – whether abrogation of self-incrimination is an abuse of process – Australian Crime Commission Act 2002 (ACT) |
Legislation Cited: | Acts Interpretation Act 1901 (Cth), s 7(2)(c) Australian Crime Commission Act 2002 (Cth), ss 4, 4A(2), 4B(1), 7, 7A, 7B, 7C, 7C(2), 7C(3), 7(1A), 7C(1)(c), 7C(1)(d), 16, 24A, 25A, 25A(3), 25A(6), 25A(7), 25A(9), 25A(9A), 25A(10), 25A(11), 25A(12), 25A(13), 25A(14), 25B, 25C, 25D, 25E, 25F, 25G, 25H, 30, 30(4), 30(4)(c), 30(5), 30(5A) 30(5B), 33, 39(5), Sch 2, cl 3 Criminal Code (Cth) Court Procedures Rules 2006 (ACT), rr 218, 220 Australian Constitution, s 122 Australian Crime Commission Regulations 2002 (Cth), s 3A |
Cases Cited: | Adams v Adams [1971] P 188 Attorney-General (Commonwealth) ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 Zhao v Commissioner of the Australian Federal Police [2014] VSCA 137; 43 VR 187 |
Texts Cited: | Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups No 2) 2009 Explanatory Memorandum, National Crime Authority Legislation Bill 2000 (Cth) Lee v The Queen [2014] HCATrans 69 (3 April 2014) Office of the Director of Prosecutions (NSW), Prosecution Guidelines (Sydney, 2007) Seller v The Queen [2013] HCATrans 204 (6 September 2013) Peter Strickland, “ACCC compulsory examinations: Does the “accusatorial” principle of criminal justice affect them?” (2014) 88 Australian Law Journal 812 Justice Mark Weinberg, “The impact of special commissions or inquiry/crime commissions on criminal trials” (2015) 15(2) The Judicial Review 199 X7 v The Queen [2015] HCATrans 109 (15 May 2015) |
Parties: | The Queen (Crown) David Will (Accused) Commonwealth (Intervener) |
Representation: | Counsel Dr K Weston-Scheuber (Crown) Mr S Whybrow (Accused) Ms S Maharaj SC (Intervener) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Accused) Australian Government Solicitor (Intervener) | |
File Number: | SCC 86 of 2015 |
REFSHAUGE J:
The administration of justice requires a balance between competing demands. On the one hand a peaceful community requires that criminal offenders are detected, prosecuted and punished. On the other hand, a civilised community requires that such detection respects rights such as privacy, freedom from torture, and no forced
self-incrimination, that such prosecution requires a fair trial in accordance with the rule of law, and that such punishment must be just and proportionate.
Much of this balance is provided in a democratic community by the legislature which, after weighing the competing demands, enacts laws that implement that balance. In this Territory, that process also requires a consideration of human rights enacted in the Human Rights Act 2004 (ACT), Pt 5.
Legislation can rarely make provision for every situation however, and this leaves the balance to be struck elsewhere, by administrators and by the courts.
This often reposes on the courts a discretion, the most obvious one being in the imposition of a sentence: House v The King (1936) 55 CLR 499 at 504. Sometimes the balance is one that requires the court to make a judgment rather than exercise a discretion: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700 at 718; [95].
Of course, legislation changes the balance from time-to-time, or enacts new procedures or regimes which require other provisions to maintain an appropriate balance. Thus, as noted by the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Galloway (A Pseudonym) [2017] VSCA 120 (CDPP v Galloway) at [1], the investigation of organised crime in Australia has been the responsibility for the last 30 years of a standing national authority, equipped with the extraordinary power of compulsory examination in which the immunity from self-incrimination is excluded.
This has required other provisions to maintain the balance and, in particular, to protect the right of an accused person to a fair trial.
The current authority is the Australian Criminal Intelligence Commission, established as the Australian Crime Commission by s 7 of the Australian Crime Commission Act 2002 (Cth), although s 7(1A) permits it to be “known by a name specified in the regulations”. Section 3A of the Australian Crime Commission Regulations 2002 (Cth) specifies the name Australian Criminal Intelligence Commission for that purpose. I shall refer to it as the Commission.
The history and a summary of the powers of the Commission are set out in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at 106; [16]-[20]. The operation of such a body has been fictionally portrayed recently in the Australian Broadcasting Commission’s television series “Janet King”, relatively accurately in the formal aspects so far as I could ascertain.
The operation of the Commission and the consequences of its operations are the subject of these proceedings.
Factual background
On 10 May 2004, certain employees, being security guards employed by Chubb Security Services Ltd, were the victims of an aggravated robbery as they collected cash amounting to $151,995.35 from the Mawson Club at Herd Street, Mawson, in the Australian Capital Territory.
During the aggravated robbery, a gun was discharged injuring one of the security guards who was collecting the cash and the cash was stolen from him.
As can be imagined, and as was appropriate, a substantial investigation was commenced by ACT Policing, the arm of the Australian Federal Police which provides policing services to this Territory. ACT Policing named the investigation Operation Galvanic. In due course the two men who carried out the robbery, Sam Melkie and Mark Anthony Munro, were prosecuted. Mr Melkie pleaded guilty and was sentenced to nine years imprisonment: R v Melkie (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 17 February 2011).
Mr Munro pleaded not guilty but was found guilty at trial and, on appeal, was sentenced to imprisonment for 10 years for the aggravated robbery: Munro v The Queen [2014] ACTCA 11.
During the course of the investigation, ACT Policing sought the assistance of the Commission which had the functions of collecting, correlating, analysing and disseminating criminal information and intelligence, undertaking, when authorised, intelligence operations and investigating, when authorised, matters relating to federally related criminal activity.
In particular, and relevant to these proceedings, the Commission had power to undertake examinations of persons who were not, in the course of the examination, permitted to decline to answer any questions put to them on the ground that any evidence they gave might incriminate them. This coercive power is, of course, very valuable for criminal investigation although there are limits on the use that can be made of such evidence secured during such an examination.
In the course of the investigation of the aggravated robbery, such an examination was conducted of the accused, David Will, on 21 May 2010. He gave evidence which was inculpatory of himself in the offence. As a result of the answers he gave in the examination, he was also required to and did give evidence at the trial of Mr Munro.
Mr Will has now been charged with aiding, abetting, counselling or procuring the offence of aggravated robbery committed by Mr Munro and Mr Melkie.
A compulsory examination was also conducted of Mr Graeme Pagden who, during the course of the examination, made a statement in which he implicated himself and Mr Will. He also gave evidence at the trial of Mr Munro.
Because of the disclosure of the evidence given by Mr Will in the examination before the Commission, Mr Will says that he can no longer receive a fair trial and, accordingly, he has sought from the Court a permanent stay of the proceedings against him.
The legislation
Section 7B of the Australian Crime Commission Act establishes a Board of the Commission consisting of the Commissioner of the Australian Federal Police, the Chief Police Officer of the Australian Capital Territory, the Commissioner or Head (however described) of the police forces of each State and the Northern Territory, the Secretary of the Australian Government Attorney-General’s Department, and the head of various other law enforcement and regulatory authorities. The Chief Executive Officer of the Commission is a non-voting member.
The functions of the Commission are set out in s 7A of the Australian Crime Commission Act which includes the following:
The ACC has the following functions:
...
(c) to investigate, when authorised by the Board, matters relating to federally relevant criminal activity;
Section 4 defines federally relevant criminal activity as follows:
federally relevant criminal activity means:
(a) a relevant criminal activity, where the relevant crime is an offence against a law of the Commonwealth or of a Territory; or
(b) a relevant criminal activity, where the relevant crime:
(i) is an offence against a law of a State; and
(ii) has a federal aspect.
An offence having a federal aspect is defined in s 4A(2) of the Act. It is a complicated definition, but relevantly provides that a State offence has a federal aspect if the making of such an offence potentially falls within Commonwealth legislative power. As the Commonwealth has plenary powers in the Territory under s 122 of the Australian Constitution, the Territory offence of aggravated robbery has a federal aspect.
Section 7C of the Act sets out the functions of the Board and, relevantly, that section provides:
7C Functions of the Board
(1)The Board has the following functions:
...
(c)to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity;
(d)to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation;
(e)to determine, in writing, the class or classes of persons to participate in such an operation or investigation;
...
Special investigations
(3)The Board may determine, in writing, that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, it must consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the federally relevant criminal activity.
Note 1:See also subsection 7G(4) for the voting rule that applies in relation to such a determination.
Note 2:See also Division 2 for the examination powers available if there is a special investigation.
Further details
(4)A determination under subsection (2) or (3) must:
(a)describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity; and
(b)state that the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and
(c)set out the purpose of the operation or investigation.
The Australian Crime Commission Act also includes a privative clause as follows:
16 Limitation on challenge to Board determination
If:
(a)an intelligence operation is determined by the Board to be a special operation; or
(b)an investigation into matters relating to federally relevant criminal activity is determined by the Board to be a special investigation;
then, except in a proceeding instituted by the Attorney-General of the Commonwealth or the Attorney-General of a State, any act or thing done by the ACC because of that determination must not be challenged, reviewed, quashed or called in question in any court on the ground that the determination was not lawfully made.
The examinations which, as noted above (at [15]), include coercive powers, are provided for under s 24A of the Australian Crime Commission Act and conducted in accordance with s 25A, which sections were relevantly in the following terms at the time that the examination was conducted:
24A Examinations
An examiner may conduct an examination for the purposes of a special ACC operation/investigation.
25A Conduct of examination
Conduct of proceedings
(1) An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit.
Representation at examination
(2) At an examination before an examiner:
(a) a person giving evidence may be represented by a legal practitioner; and
(b) if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner – the person may be so represented.
Persons present at examination
(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.
(4) Nothing in a direction given by the examiner under subsection (3) prevents the presence, when evidence is being taken at an examination before the examiner, of:
(a) a person representing the person giving evidence; or
(b) a person representing, in accordance with subsection (2), a person who, by reason of a direction given by the examiner under subsection (3), is entitled to be present.
(5) If an examination before an examiner is being held, a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present by reason of a direction given by the examiner under subsection (3) or by reason of subsection (4).
Witnesses
(6) At an examination before an examiner:
(a) counsel assisting the examiner generally or in relation to the matter to which the ACC operation/investigation relates; or
(b) any person authorised by the examiner to appear before the examiner at the examination; or
(c) any legal practitioner representing a person at the examination in accordance with subsection (2);
may, so far as the examiner thinks appropriate, examine or cross-examine any witness on any matter that the examiner considers relevant to the ACC operation/investigation.
(7) If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness ) is giving evidence at the examination, the examiner must:
(a) inform the witness that the person is present; and
(b) give the witness an opportunity to comment on the presence of the person.
(8) To avoid doubt, a person does not cease to be entitled to be present at an examination before an examiner or part of such an examination if:
(a) the examiner fails to comply with subsection (7); or
(b) a witness comments adversely on the presence of the person under paragraph (7)(b).
Confidentiality
(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 thin, 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.
Courts
(12) If:
(a) a person has been charged with an offence before a federal court or before a court of a State or Territory; and
(b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;
the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.
(13) If:
(a) the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and
(b) the court, after examining the evidence, is satisfied that the interests of justice so require;
the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.
Offence
(14)A person who:
(a)is present at an examination in contravention of subsection (5); or
(b)makes a publication in contravention of a direction given under subsection (9);
is guilty of an offence punishable, upon summary conviction, by a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 12 months.
End of examination
(15) At the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation:
(a) a record of the proceedings of the examination; and
(b) any documents or other things given to the examiner at, or in connection with, the examination.
These provisions have recently been amended. This makes reference to authorities on the provisions a matter that must be dealt with cautiously. In particular the following amendments have been made:
(1) Two subsections were added to s 24A commencing from 28 July 2015 as follows:
(2) The examination may be:
(a) a pre-charge examination or a post-charge examination; or
(b) a pre-confiscation application examination or a post-confiscation application examination.
(3) Without limiting its effect apart from this subsection, this Act also has the effect it would have if:
(a) paragraph (2)(a) were, by express provision, confined to pre-charge examinations; or
(b) paragraph (2)(b) were, by express provision, confined to
pre-confiscation application examinations.
(2) Significant amendments were made to s 25A also commencing from 28 July 2015 as follows:
(a) inserting after s 25A(6) the following subsections:
(6A) For the purposes of subsection (6), the matters relevant to the ACC operation/investigation may include:
(a) the subject matter of any charge, or imminent charge, against the witness; and
(b) the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the witness.
(6B) Without limiting its effect apart from this subsection, this Act also has the effect it would have if:
(a) subsection (6A) had not been enacted; or
(b) subsection (6A) were, by express provision, confined to dealing with a charge against the witness or such a charge that is imminent; or
(c) subsection (6A) were, by express provision, confined to dealing with a confiscation proceeding against the witness that has commenced or is imminent.
(b) repealing s 25A (9), (10) and (11) and substituting the following subsections:
Confidentiality
(9) An examiner may direct that examination material:
(a) must not be used or disclosed; or
(b) may only be used by, or disclosed to, specified persons in specified ways or on specified conditions.
(9A) An examiner must give a direction under subsection (9) about examination material if the failure to do so:
(a) might prejudice a person's safety; or
(b) would reasonably be expected to prejudice the examinee's fair trial, if the examinee has been charged with a related offence or such a charge is imminent.
(10)A direction under subsection (9) about examination material may, in writing, be varied or revoked by:
(a) the CEO; or
(b) the examiner conducting the examination, if the examinee for the examination material has neither been excused nor released from further attendance at the examination.
(11) However, the direction cannot be varied or revoked if the variation or revocation:
(a) might prejudice a person's safety; or
(b) would reasonably be expected to prejudice the examinee's fair trial, if the examinee has been charged with a related offence or such a charge is imminent.
(c) repealing s 25A(14) and substituting:
Offences
(14) A person commits an offence if the person contravenes subsection (5) by being present at an examination.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(14A) A person commits an offence if:
(a) the person uses or discloses examination material (whether or not the person is the first to do so); and
(b) the use or disclosure contravenes a direction given under subsection (9) about the examination material; and
(c) the use or disclosure is not under subsection (12) or (13) or paragraph 25C(1)(b).
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
While the issue was not addressed in the written submissions of the parties and did not arise during oral argument and so I was not favoured with any submissions by the parties, it seems to me that the mandatory obligations under s 25A(9A) and (11) as to publication or, rather, non-publication, created rights that accrued to Mr Will at the time he was examined and that these survived the repeal of those sub-sections.
See s 7(2)(c) of the Acts Interpretation Act 1901 (Cth), Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at 552.
In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Land Act (1988) 14 NSWLR 685 at 696, Hope JA explained:
a statutory right will be preserved notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in train before the repeal or amendment.
This is consistent with the findings in Lee v The Queen [2014] HCA 20; 253 CLR 455 with respect to the failure to make a non-publication direction in respect of the second appellant’s compulsory examination in that case.
The Examiner conducting the examination has power to require the examinee to answer questions and, where the examinee claims that the answers may incriminate him or her, there are restrictions on the use that can be made of such answers. This is set out in s 30 of the Australian Crime Commission Act relevantly at the time of the examination of Mr Will as follows:
30Failure of witnesses to attend and answer questions
…
Failure to answer questions etc.
(2)A person appearing as a witness at an examination before an examiner shall not:
(a)when required pursuant to section 28 either to take an oath or make an affirmation – refuse or fail to comply with the requirement;
(b)refuse or fail to answer a question that he or she is required to answer by the examiner; or
(c)refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed.
…
Use immunity available in some cases if self‑incrimination claimed
(4)Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection only applies if:
(a)a person appearing as a witness at an examination before an examiner:
(i)answers a question that he or she is required to answer by the examiner; or
(ii)produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and
(b)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.
In the amendments referred to above (at [27]), which commenced on 28 July 2015, a number of sections were inserted, namely ss 25B, 25C, 25D, 25E, 25F, 25G and 25H. They permitted evidence given by an examinee or documents produced by an examinee (included in the term “examination material”) to be disclosed to a prosecutor: s 4B(1) of the Australian Crime Commission Act.
It was not discussed before me as to whether these provisions applied in the circumstances and, if so, what the consequence was. It is not necessary, therefore, to set out the provisions.
In any event, the newly inserted s 25E of the Australian Crime Commission Act preserves the Court’s requirement to ensure a fair trial. Relevant portions of the section are:
25ECourt’s powers to order disclosure and to ensure a fair trial
…
Court’s powers to ensure the examinee’s fair trial
(3)Subsection (1) and sections 25B, 25C, 25D, 25F and 25G do not, by implication, restrict a court’s power to make any orders necessary to ensure that the examinee’s fair trial is not prejudiced by the possession or use of examination material or derivative material by a prosecutor of the examinee.
(4)However, a person’s trial for:
(a)an offence against a law of the Commonwealth or a Territory; or
(b)an offence against a law of a State that has a federal aspect;
is not unfair merely because the person has been an examinee. This applies whether the person became an examinee:
(c)before being charged with the offence and before such a charge was imminent; or
(d)after being charged with the offence or after such a charge was imminent.
(5)Without limiting its effect apart from this subsection, this Act also has the effect it would have if subsection (4), or paragraph (4)(d), had not been enacted.
The following definitions set out in s 4 of the Australian Crime Commission Act are also relevant in these proceedings:
member of the staff of the ACC means:
(a) a member of the staff referred to in subsection 47(1); or
(b) a person participating in an ACC operation/investigation; or
(c) a member of a task force established by the Board under paragraph 7C(1)(f); or
(d) a person engaged under subsection 48(1); or
(e) a person referred to in section 49 whose services are made available to the ACC; or
(f) a legal practitioner appointed under section 50 to assist the ACC as counsel.
...
relevant crime means:
(a) serious and organised crime; or
(b) Indigenous violence or child abuse.
Note: See also subsection (2) (which expands the meaning of relevant crime in certain circumstances).
...
relevant criminal activity means any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth, of a State or of a Territory.
...
serious and organised crime means an offence:
(a) that involves 2 or more offenders and substantial planning and organisation; and
(b) that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and
(c) that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and
(d) that is a serious offence, an offence against Subdivision B or C of Division 471, or D or F of Division 474, of the Criminal Code , an offence of a kind prescribed by the regulations or an offence that involves any of the following:
(i) theft;
(ii) fraud;
(iii) tax evasion;
(iv) money laundering;
(v) currency violations;
(vi) illegal drug dealings;
(vii) illegal gambling;
(viii) obtaining financial benefit by vice engaged in by others;
(ix) extortion;
(x) violence;
(xi) bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory;
(xii) perverting the course of justice;
(xiii) bankruptcy and company violations;
(xiv) harbouring of criminals;
(xv) forging of passports;
(xvi) firearms;
(xvii) armament dealings;
(xviii) illegal importation or exportation of fauna into or out of Australia;
(xix) cybercrime;
(xx) matters of the same general nature as one or more of the matters listed above; and
(da) that is:
(i) punishable by imprisonment for a period of 3 years or more; or
(ii) a serious offence;
but:
(e) does not include an offence committed in the course of a genuine dispute as to matters pertaining to the relations of employees and employers by a party to the dispute, unless the offence is committed in connection with, or as part of, a course of activity involving the commission of a serious and organised crime other than an offence so committed; and
(f) does not include an offence the time for the commencement of a prosecution for which has expired.
The evidence
David Will
Mr Will made an affidavit and gave oral evidence. His evidence was as follows.
He said that he conducted a cleaning business in Fyshwick. Since 2004, he has suffered two strokes and been diagnosed with Type 2 Diabetes. He has had high blood pressure for over 10 years. His doctor has advised him that it is likely that he has also suffered multiple “mini strokes” over the last 10 years and is presently prescribed various medications for these conditions.
He says that, as a result of these medical conditions, he has developed gaps in his memory and will “sometimes muddle things up”.
He first met a police officer, Senior Constable Kyle Williams, some years before 2010. Senior Constable Williams identified himself as a detective and told him that he knew “a fair bit” about Mr Will. Mr Will said that Senior Constable Williams said to him words to the effect of “I’m here to take you down and I’m going to stay here [in Canberra] until I do”. He did not explain what he was investigating. Mr Will assumed it had something to do with his, Mr Will’s, association with members of the Rebels Outlaw Motor Cycle Gang (the Rebels Gang).
Later, Senior Constable Williams and another police officer, whom Mr Will believed was Detective Sergeant Michael Laverty, attended at Mr Will’s home and told him that they were investigating the aggravated robbery outside the Mawson Club, referred to above (at [10]). They asked him questions about Mr Melkie and whether he knew anything about the aggravated robbery. Mr Will said something about his relationship with Mr Melkie but otherwise said that he did not know anything and he was not going to talk about anything.
He said that Senior Constable Williams and Detective Sergeant Laverty later tried to interview him again but Mr Will declined to speak to them.
Still later, Senior Constable Williams asked Mr Will to provide a DNA sample and Mr Will initially refused. Senior Constable Williams said that he would get a court order. Mr Will told him that he had nothing to hide and that, if they were going to get a court order, he would agree to provide the DNA sample. He provided the sample a few days later.
Some time after that, Senior Constable Williams contacted Mr Will, identifying himself this time as Federal Agent Williams of the Commission. I shall refer to this officer as Senior Constable Williams or Federal Agent Williams depending on the relevant time period.
He made an arrangement with Mr Will to meet him the next day. After meeting Federal Agent Williams, Mr Will said that he was taken to the Commission offices and given a summons to answer questions. He obtained the services of a solicitor and arranged for him and a barrister to attend with him at the Commission.
He then returned to the Commission the next day with solicitor and counsel and was asked a series of questions in what he described as “some type of a Courtroom”. He said:
There was a bench for the Examiner and a table for lawyers and a seat and microphone for me. I was told that my right to silence and my right not to incriminate myself did not apply and that I had to answer all questions I was asked. I was told however that absolutely nothing I said to the Crime Commission could be produced in a court and if the police wanted to get evidence against me for any involvement in offences they would have to get evidence from somewhere else.
Mr Will said that both Federal Agent Williams and Detective Sergeant Laverty were present in the room during the time he gave evidence.
He was later required by subpoena to attend and give evidence at the trial of Mark Munro. He had not given police a statement prior to giving that evidence.
The evidence Mr Will had given to the Commission in the compulsory examination, however, had, by court order, been made available to both the prosecution and defence counsel and other persons involved in Mr Munro’s trial: R v Munro [2013] ACTSC 14.
Before he was called to give evidence in the trial of Mr Munro, Mr Will spoke to Federal Agent Williams outside the courtroom where the trial of Mr Munro was being conducted and told him that he was not going to say anything. He said that Federal Agent Williams told him that another person had “given us a lot of information ... but we’re looking after him. You just go in [to court] and tell the truth and we’ll look after you too”. Mr Will repeated to Federal Agent Williams that he was “not going to say nothing to anyone”.
He was then asked to speak to the Crown Prosecutor, who was Mark Fernandez, and he says the following conversation took place with the Prosecutor:
He said:You know why you’re here David, as a witness in the Munro trial. You’re going to have to name Mark.
I said:I’m not gonna say fuck all. I’m not naming anyone. I’m already in enough shit. What I said before [meaning the Crime Commission] can’t go anywhere so I’m saying nothing.
He said:Well you’ve got no choice mate. The horse has bolted.
I said:What do you mean?
He said:You have already named Munro as being involved. So you’ve got to do it in court or you’ll be in more trouble for perjury if you don’t tell the truth in there about what happened.
Mr Fernandez disputed parts of this conversation. I will deal with that below (at [149]).
Mr Will said that Mr Fernandez had “obviously read my evidence to the Crime Commission” and he said that the Prosecutor told him that if he did not name Mr Munro he would be charged with perjury.
He then went back to court and was called to give evidence. He did give evidence. During the course of his evidence, he initially declined to answer questions about the aggravated robbery and the involvement of Mr Melkie and Mr Munro. He was provided with a certificate under s 128 of the Evidence Act 2011 (ACT) and directed to answer the relevant questions. He did so.
In his evidence-in-chief, a transcript of which was before me, annexed to one of two affidavits of his current solicitor, Darryl Perkins, Mr Will stated that:
(a)he had spoken to an employee of Chubb Security Services Ltd about the collection of cash from various locations;
(b)he had discussed with the employee how much money was collected and where large sums were collected, one of which was the Mawson Club;
(c)he participated in the organisation of a robbery of cash from outside the Mawson Club when a van from Chubb Security Services Ltd was to collect it;
(d)he recruited two people to commit the robbery, being Mr Melkie and Mr Munro and he explained how he did so; and
(e)he received some of the proceeds of the aggravated robbery.
Before me, Mr Will was cross-examined on his affidavit. He said that, while the strokes he had suffered had affected his memory, he could remember some things and not others.
He was asked about the statement made to him by the Commission’s Examiner about non-publication of the evidence he gave. He was emphatic that what he understood was that whatever he said “could not be used against [him] in a court”. Whether it was a criminal court or another type of court, he was not sure. He understood that, if he were to be prosecuted, what he had said could not be used in evidence.
He agreed that he was represented by a solicitor and a barrister in that examination and that they made no submissions nor took any objections before the Examiner.
Mr Will accepted that, neither at the time when he was examined nor when he gave evidence in the trial of Mr Munro, had he been charged with any relevant offence. He did say, however, that he was aware that police wanted to charge him but had not yet done so.
He agreed that the trial judge in the trial of Mr Munro had given him a certificate under s 128 of the Evidence Act for some of the evidence he had given in the trial. He did not recall the Crown Prosecutor discussing the availability of such a certificate with him, though he did not deny that it may have been discussed.
He was taken to passages in the cross-examination of him by Mr Munro’s counsel, Ken Archer. The evidence was as follows:
And I’m just going to read you this passage, and then I’ll ask you a question about it. Mr Archer at line 15, “Have you been told that you will be prosecuted if you don’t come along and give evidence in these proceedings?” Your answer, “No. If I don’t come”, and
Mr Archer said, “No. To give evidence in these proceedings. Have you been told that you – has something been said to you about whether or not you are going to be prosecuted if you don’t give evidence in these proceedings?”, and your answer was, “No. I’ve been told if I give evidence in this proceeding I won’t be prosecuted for myself. That’s what I understand.” Do you recall saying that in the evidence in the Mark Munro proceeding? Do you recall being asked those questions and giving those answers? --- Yes, I think that’s right.
This would appear to be consistent with what he said that Federal Agent Williams had said to him as noted above (at [50]).
In cross-examination, however, it was suggested rather differently that what he understood at the time of giving these answers was that:
because you had been given a certificate you could not – that evidence you were giving in the Munro trial could not subsequently be used against you in a prosecution? --- That’s what I thought. That’s what I thought it meant.
It was not clear to me that Mr Will was disavowing or modifying his evidence of what he said that Federal Agent Williams had told him rather than acknowledging the effect of the certificate. Further questions did not directly suggest that he was disavowing Federal Agent Williams’ statements.
When put to him that he did not say in his affidavit that someone had told him that he would not be prosecuted for the aggravated robbery at Mawson, he said that the Examiner at the Commission had told him that and “that I was told the same thing at the Munro trial”.
When further explored in cross-examination, he agreed that, at the time, he did not understand the difference between a prohibition from the use of evidence he gave before the Commission and immunity from prosecution. He agreed that the certificate under s 128 of the Evidence Act did not mean that he could not be charged for the aggravated robbery but that the evidence he had given could not be used against him.
He then agreed that he could not recall anyone from the Australian Federal Police saying to him that he would not be prosecuted for the aggravated robbery, nor that any prosecutor had said this to him so far as he could remember, though it may have been said. He also agreed that the trial judge in the trial of Mr Munro had not said that to him.
He was also cross-examined about statements he said the Crown Prosecutor had made to him. He said that he clearly recalled the Prosecutor telling him that he had to name Mr Munro and that, when he declined, the Prosecutor told him he had no choice; “the horse has bolted”. He also confirmed that the Prosecutor had told him that he could be charged with perjury. He agreed he made no note of the conversation and that it was “a couple of years” after the conversation that he was first required to recall it.
He agreed that it was possible that there were things that the Prosecutor said that he did not recall. He could not recall a number of statements suggested to him in
cross-examination that the Prosecutor was said to have made. When asked if the Prosecutor had said he may be charged with contempt if he refused to answer questions, he was initially unsure and then said that he was told that if he lied he could be prosecuted for perjury. He was emphatic that there was a mention of perjury and denied confusing that with contempt.
He also agreed that he did not want to implicate other people, such as Mr Munro, in the aggravated robbery.
In re-examination at that trial, he recalled that the Examiner had told him that his evidence would not be produced as evidence against another person. He also said that he was surprised that the Crown Prosecutor had a copy of the evidence he gave to the Examiner.
Mr Will said that he thought that what he had been told by the Examiner could not “come back and bite” him.
When Mr Will was cross-examined at the trial of Mr Munro by Mr Munro’s counsel, a number of the questions and answers from his examination by the Examiner from the Commission were put to him. It was suggested that he had lied to the Commission; he denied it.
In re-examination, a number of the questions and answers from that examination were also put to him, especially answers he gave after certain incriminating recordings had been played to him at the hearing in the Commission and it had been recommended to him by the Examiner that he reconsider his position. That evidence was consistent with his evidence-in-chief at the trial and was adduced under s 108 of the Evidence Act for the purpose of re-establishing Mr Will’s credit by the prosecution.
Darryl Raymond Perkins
Darryl Raymond Perkins, solicitor for Mr Will, made two affidavits which were filed in the proceedings and read.
The evidence in Mr Perkins’s two affidavits annexed documents referred to elsewhere and I do not need to summarise the other contents of his affidavits.
In cross-examination on his affidavit, Mr Perkins explained that he had learnt certain matters in relation to conversations Mr Will had with police and to the evidence he had given the Commission. He was concerned that the matters conflicted with what was said in the conversations and evidence which may make him unable to represent Mr Will.
There was then considerable debate about the questions that the Crown respondent to the application sought to ask him when he gave evidence before me but the difficulty was resolved when, by consent, I struck out a paragraph of one of his affidavits, effectively leaving the affidavits to do little more than annex documents, with no affidavit evidence of his apparent ethical difficulty.
Detective Sergeant Michael Laverty
An affidavit from Detective Sergeant Michael Laverty was read. He was, in August 2009, a team member of ACT Policing Criminal Investigations investigating aggravated robberies in the ACT, and this included a review of the aggravated robbery outside the Mawson Club. He was allocated the role of case officer and later became the informant for the prosecution of Mr Will.
He said that, on 15 November 2012, he had attended Mr Will’s residential address and served him with a Witness Summons for attendance at Mr Munro’s trial. He said that on 12 November 2014, he also spoke to Mr Will who attended at City Police Station and participated in an interview which was digitally recorded. I did not have access to the transcript, if any, of that interview.
He also spoke to Mr Will on 23 January 2015 when they had a conversation outside the ACT Magistrates Court. He reviewed his official diary which recorded a number of telephone conversations with Mr Will between November 2012 and January 2015.
He obtained and reviewed the official diary of Federal Agent Williams and noted that, on 14 May 2010, Federal Agent Williams spoke to Mr Will at his Fyshwick workshop and had three telephone conversations with him in March and May that year. Federal Agent Williams ceased employment with the Australian Federal Police on 27 April 2015 and has not been able to be located since that time.
Detective Sergeant Laverty stated that a search warrant had been executed at Mr Will’s business premises on 25 February 2010. The execution of the search warrant was recorded and a transcript exists of the record. I did not see it. He made no other comment about the execution of the search warrant, what was said or what, if anything, was seized. It is not entirely clear what the relevance of this evidence was to these proceedings.
He annexed a number of statements and copies of police diary records to his affidavit which he said were copies of all the statements that he and Federal Agent Williams made about the matter. These showed, relevantly, that:
(a) on 4 January 2010, police had seen Mr Will meet Mr Munro for about 15 minutes;
(b) as at 10 January 2013, Detective Sergeant Laverty stated that Mr Will had not been requested to make a witness statement in the matter of the prosecution of Mr Munro;
(c) Senior Constable Kyle Williams reviewed an external hard drive on 16 April 2010 and then, on 7 May 2010, extracted 37 audio files from it, this hard drive recording material recovered under a warrant permitting the installation of listening devices in respect of, inter alia, Mr Will;
(d) on 27 May 2010, Federal Agent Williams extracted two particular audio files from the material referred to in (c), copied them to a DVD which he handed to Detective Senior Constable Laverty and then, on 2 June 2010, compared a transcript that had been made of this audio material and he was satisfied that the transcript was accurate;
(e) Senior Constable Williams attended at a Queanbeyan address on 7 December 2009 where he had a short conversation in which, his diary shows, he was given information, it appears, that Mr Melkie was a cleaner employed by Mr Will, whose business address he was then given;
(f) the diary of Senior Constable Williams showed that later on 7 December 2009, he met with Daniel Robert Bruce Williams and discussed the aggravated robbery at Mawson and, during the conversation, Mr Will’s name came up, including as the employer of Mr Melkie and as having met with Daniel Williams, as well as other information which appeared to implicate Mr Will in the aggravated robbery;
(g) on 21 December 2009, Senior Constable Williams had applied to Federal Magistrate Neville for a warrant permitting the installation of a listening device in relation to Mr Will and the warrant was granted;
(h) on 3 February 2010, Senior Constable Williams appears to have attended at Mr Melkie’s Queanbeyan address where he was advised that Mr Will was in debt to the Rebels Gang, and later that day noted a conversation between Mr Will and Mr Melkie;
(i) the diary of Senior Constable Williams showed an entry for 11 February 2010, at 1:50pm where he was recorded as having interviewed a person who told him that Mr Will went to school with him; and
(j) Senior Constable Williams stated that he had been, since June 2009, the Case Officer for the investigation of the aggravated robbery at Mawson and, during the investigation had identified Mr Will as a suspect in relation to the incident; indeed as at 13 February 2013, he expressed the belief, which he described as “reasonable” that Mr Will was one of the principals who planned and organised the aggravated robbery.
In his oral evidence, Detective Sergeant Laverty gave the substance of a telephone conversation that Federal Agent Williams had had with Mr Will, but which was not in the material annexed to his affidavit. The substance of the call was that Federal Agent Williams, on 14 May 2010, had asked Mr Will where he could meet him to discuss the aggravated robbery at Mawson and they agreed to meet at Mr Will’s Fyshwick shop later that day.
He agreed in cross-examination that the later meeting was likely to be when Mr Will was served with a summons to appear before the Commission to be examined.
Detective Sergeant Laverty acknowledged being present in the hearing room during Mr Will’s examination by an Examiner of the Commission on 21 May 2010. He acknowledged that Federal Agent Williams was also present.
Detective Sergeant Laverty recalled going to Mr Will’s residence on at least one, possibly two, occasions and having a discussion with him in his kitchen. He also recalled on one occasion leaving a business card at Mr Will’s front door because
no-one was home.
Detective Sergeant Laverty set out details of his attempts to contact Kyle Williams (that is, formerly Senior Constable, and then Federal Agent, Williams) who had ceased employment with the Australian Federal Police on 27 April 2015. He was unable to make contact.
He also deposed that he was aware that the Victorian Police had attempted to locate Mr Williams without success.
In oral evidence, Detective Sergeant Laverty said that none of the other members of the police team investigating the aggravated robbery at Mawson were present when Mr Will was examined in the Commission, even though a number of them and others were authorised to be present.
He was cross-examined. He agreed that there had been conversations between at least Senior Constable Williams and officers of the Commission to arrange for the examination of various witnesses in connection with the investigation of the aggravated robbery at Mawson, including of Mr Will.
He further agreed that, when he was present at the examination of Mr Will, he was, through what counsel described as “various mechanisms”, deemed to be a member of staff of the Commission but that he never “formally” worked for the Commission nor had been seconded to work for it. To his knowledge, Federal Agent Williams, who was also present at Mr Will’s examination, was in the same position.
Detective Sergeant Laverty was shown a document produced on subpoena by the Australian Federal Police, apparently prepared by Senior Constable Williams, though the document was not signed by him nor dated. It was said to be a “Strategic Crime Assessment” prepared for the initial consideration of and planning required for a major investigation. It related to Operation Galvanic which Detective Sergeant Laverty described as “the operation in relation to trying to solve the Mawson [aggravated] robbery”. He had seen the document which he agreed was part of the police request for assistance from the Commission with Operation Galvanic.
The document recounted the background, including the following passage:
The initial 2004 investigation and a 2007 re-investigation failed to resolve Operation Galvanic.
Forensic analysis of the cigarette butts obtained from the crime scene identified two male Deoxyribonucleic acid (DNA) profiles on three of the cigarettes – these profiles were subsequently attributed to Sam John Melkie (born 26/5/58) and Mark Anthony Munro (born 2/11/60).
Between 6 August 2009 and 28 February 2010, Operation Galvanic was re-examined by members of ACT Criminal Investigations (ACT-CI) Operation Tondo (Operation Tondo was an ACT Criminal Investigations (ACT-CI) team formed in May 2009 to examine five (5) armed robberies upon Licensed Premises across Canberra – all robberies were successfully cleared).
Investigative enquiries conducted between 6 August 2009 and 28 February 2010 revealed the following:
§The robbery was committed by Melkie, Munro, and David Allen Will (born 21/05/55). Of note, Will and Melkie are brothers-in-law
§Will organised the robbery to pay off two large outstanding debts: Approximately $40,000 dollars owed to the Australian Tax Office (ATO) and $40,000 dollar drug debt owed to the Rebels Outlaw Motorcycle Gang (OMCG)
§The robbery was an ‘inside job’ as Will obtained specific information about Chubb Security Service Modus Operandi (M.O.) from Graeme John Pagden (17/06/65), a Chubb employee at the time of the robbery. Pagden also allegedly supplied Will with inside information about other Chubb cash movements around the ACT (It is believed that Will, Melkie, and Daniel Robert Bruce Williams (born 22/06/66) used this information to conspire to commit an aggravated robbery of the Stirling Labour Club in October 2005)
The document continued:
§Due to a lack of co-operation by the key suspects, the investigation was heavily reliant upon utilising targeted investigative enquiries to generate discussion amongst suspects recorded via covert Special Projects.
Detective Sergeant Laverty agreed that this meant that police took steps to encourage people who are suspected of crimes to talk on the telephone or talk amongst themselves so that police could listen on the conversation and see if they could progress the investigation.
The document further stated:
At resolution, Operation Galvanic achieved the following results:
§Melkie arrested and charged with attempted murder and aggravated robbery
§Munro arrested and charged with attempted murder and aggravated robbery
§There was insufficient evidence to pursue criminal charges against Will or Pagden
§The proceeds of the robbery ($152,000 dollars) were not been recovered.
As a result, assistance was sought from the Australian Crime Commission (ACC) to utilise their coercive powers to facilitate future criminal action against Will, Pagden, and members of the Rebels OMCG.
The document then continued:
Scope/concept of Investigation:
Presently, Operation Galvanic cannot be further resolved using traditional policing methods.
As a result, the ACC will be engaged to utilise their coercive powers to obtain information from the key suspects that could not otherwise be obtained.
Thus, the concept of the Operation will be: To utilise the ACC coercive powers to obtain information about the involvement of Will, Pagden, in the 2004 Mawson robbery and locate the outstanding proceeds of the crime.
[P]ersons known to Operation Galvanic will be coercively examined. The strategy of these examinations will be ‘work from the outside in’. In other words, the main suspects (i.e. Will and Pagden) will be examined last. The other witnesses, who are less involved in the suspected criminality, are likely to reveal key information which will then be progressively used against subsequent witnesses who are suspected of greater involvement in criminality.
It was then recorded:
Of note, information obtained from each examination cannot be used against the witness in criminal proceedings (unless in proceedings related to giving false/misleading evidence etc). However, their evidence can be used against other persons. Further, their examination can later be used as their ‘witness statement’ for court purposes.
The purpose of enlisting the assistance of the Commission and using, for example, threat of offences for not answering questions, became clear when the document continued:
Hence, as witnesses have thus far proven un-cooperative, it is strongly anticipated that appearance in a coercive questioning environment, coupled with any leverage gained from associated witness examinations and/or identified ACC offences, will encourage all of these uncooperate witnesses to ‘roll-over’ on Will, Pagden, in relation to the Mawson robbery.
Detective Sergeant Laverty agreed that there was contact between police and officers of the Commission, including a meeting and planning sessions, prior to the conduct of the examinations. This included preparation of draft questions to be asked in the examination and a briefing prepared by Senior Constable Williams provided to the Commission’s legal officer. He agreed that it could be inferred that there was a very close liaison between the investigating police officers and the Commission, though he only conceded that “they’d had meetings and face-to-face conversations and teleconferences”. On the evidence, I am, however, prepared to draw the inference.
Mark Fernandez
An affidavit from Mr Fernandez, Senior Advocate in the Office of the ACT Director of Public Prosecutions, was also read. He had carriage of the prosecution of Mr Munro and was Crown Prosecutor at the trial.
He said that Mr Will attended his office on 25 February 2014 for a pre-trial proofing. Mr Fernandez’s evidence was as follows:
7.Mr Will initially told me that he wasn’t going to say anything at trial. It was explained to him that the court would closed [sic] when he gave evidence.
8.Mr Will said words to the effect that he had been told by the Australian Crime Commission that his evidence before the Commission could not be used.
9.I explained to him that it could and would not be used in any prosecution against him.
10.I informed Mr Will that the (Australian Crime Commission) material had been released to both parties (Crown and Defence) because it had been determined that it was in the ‘interests of justice’ to do so.
11.I explained to Mr Will that if he refused to answer a question that he might be held in contempt of court: That was said within the context of the protections that he would be offered if he declined to answer a question on the grounds that he might incriminate himself, such as a certificate under s 128 of the Evidence Act, or as a result of a successful Crown application under s 38 of the Evidence Act.
12.Mr Will said that he was concerned for his safety and that he didn’t want to ‘dog.’ I commented to the effect that that horse may already have bolted.
13.Mr Will finally said that any answers that he gave would be short.
14.At no time did I say ‘Your (sic) going to have to name Mark.’
15.At no time did I say ‘So you’ve got to do it in court or you’ll be in more trouble for perjury if you don’t tell the truth in there about what happened.’
16.At no time did I tell Mr Will that if he ‘didn’t name Munro (he) would be charged with perjury and (sic) going to gaol.’
17.At no time did I make any representations or application to the Director of Public Prosecutions concerning the provision of any indemnity from prosecution for Mr Will.
18.I am not aware of any indemnity from prosecution being provided to Mr Will. As counsel with carriage of the prosecution of Mr Munro I expect that I would have been informed by the Director of Public Prosecutions or his delegate if an indemnity from prosecution had been provided to Mr Will.
Mr Fernandez was cross-examined. He explained that the prosecutor to whom the trial of Mr Munro was originally allocated could not conduct it and it was re-allocated to him about two weeks before the trial.
Mr Fernandez acknowledged that an undertaking had been granted to Daniel Williams that he not be prosecuted for the aggravated robbery, but that he, Mr Fernandez, played no part in that arrangement. He also acknowledged that another witness, Graeme Pagden, had not been granted such an undertaking. He was asked some further questions about the undertaking given to Mr Williams, but I do not need to consider that further.
Mr Fernandez was taken to some documents which were documents he used, annotated or made for the purposes of the prosecution of Mr Munro. He acknowledged that he had access to the transcript of Mr Will’s examination by the Commission and other material from the Commission. This permitted him to conclude that Mr Will was in a position to give relevant evidence at the trial. He was aware that this material was sensitive and he wanted to be alert to the issues in the transcript, especially the statement by the Examiner that the evidence given by Mr Will in the course of the examination could not be produced as evidence against another party.
He was also prepared, if Mr Will gave evidence inconsistent with the evidence he had given to the Commission, to apply under s 38 of the Evidence Act for leave to
cross-examine him, by reference to the evidence he had given to the Commission, though he pointed out that the occasion never arose. He said that he would have used the transcript as a prior inconsistent statement.
Mr Fernandez was then asked questions about the conversation that he had with Mr Will. Mr Fernandez agreed that Mr Will did not want to implicate other people, especially Mr Munro. He acknowledged that he had material from the Commission which he described as “a live issue” that he “anticipated would be ventilated during the course of the trial”. He said it was in that context that he had used the expression that “the horse has bolted”.
He explained to me what he meant by the expression, as follows:
So it wasn’t just that he had named them in the ACC, because prima facie that material is confidential, that it was now available to be put to him in the Munro trial; so that’s the sense of the horse had bolted, wasn’t it? --- In reference to his comment to the effect that he didn’t want to be a dob, that gives context to that, yes. That’s right, [your] Honour.
Such use would have been prohibited by the non-publication direction made by the Examiner in the Commission prior to various amendments made to it.
Documentary evidence
Adduced in evidence to me was material produced under subpoena by the ACT Director of Public Prosecutions, the Australian Federal Police and the Commission. This material included a Variation of Non-Publication Direction made by a delegate of the Chief Executive Officer of the Commission on 12 August 2010 which, under s 25A(9) of the Australian Crime Commission Act, had varied the non-publication direction of the Examiner originally made on 21 May 2010 (and which had already been varied on 4 August 2010) to permit the evidence by Mr Will to be made available to certain persons and to:
any court and staff of such a court for use in connection with any prosecution under the ACC Act or in any other prosecution (the prosecution proceedings).
This would have permitted the Crown Prosecutor to use the transcript for the purposes of proving to the court conducting the trial of Mr Munro that Mr Will had made a prior inconsistent statement of his evidence to that court was inconsistent with the evidence he had given to the Examiner of the Commission.
Whether that use would breach s 30(5) of the Australian Crime Commission Act is not a matter that I need to address.
Also admitted into evidence was an Authorisation and Determination of a Special Investigation by the Board of the Commission, entitled “High Risk Crime Groups No 2 2009”. Because of the significance of the document, it is annexed in full as an Appendix to these reasons. I shall refer to it as the “Second Determination”.
A number of other documents were admitted into evidence having been produced under subpoena from the Commission.
Included in the documents produced was an authority given by the Examiner who was conducting the examination of Mr Will for 20 people to be present at the examination. It was signed at the beginning of the examination of Mr Will on 21 May 2010.
It is not entirely clear from the material before me which of these persons heard the examination of Mr Will. It appears that a number may have been listening to the examination from a monitoring room even if not physically present in the examination room. As I noted earlier (at [47]), Mr Will said that Federal Agent Williams and Detective Sergeant Laverty, whose names were included in that authority, were actually present in the examination room. Detective Sergeant Laverty confirmed that evidence.
Although these people were all described as “staff” of the Commission, only two showed an employment relationship with the Commission under the column “Position/Agency” in the authority document. All the others were AFP officers, 16 of them from ACT Policing. They included a Deputy Commissioner and a Detective Superintendent.
As explained below, they were members of staff of the Commission, but they were also investigators who had been investigating, and thereafter continued to investigate, the aggravated robbery at Mawson. Indeed, Detective Senior Constable Laverty and Senior Constable Williams were both on the list. So far as the names of the members of the AFP were concerned, the list of persons had been supplied to the Commission by Senior Constable Williams.
Documents provided to Mr Will’s lawyers and annexed to Mr Perkins’s second affidavit showed how these persons became, relevantly, staff of the Commission. As set out above (at [36]), s 4 of the Australian Crime Commission Act defines members of staff of the Commission to include “a person participating in a ACC operation/investigation”. Paragraph 10 of the Second Determination makes, for the purposes of s 7C(1)(c) of that Act (for which, see [24] above), certain classes of persons are those who are to participate in the investigation under it. They are the classes set out in sch 2 and include persons identified in writing as a person whose duties include providing services in relation to ACC operations or investigations by the head of an agency, whose head is a Board member of the Commission and who is a member or officer of that agency.
On 2 June 2009, the Commissioner of the AFP and Chair of the Board of the Commission, identified in writing a very large number of members or officers of the AFP as such persons. A copy was one of the documents annexed to Mr Perkins’ second affidavit.
On 26 June 2009, the Chief Police Officer of the AFP, a member of the Board of the Commission, identified in writing the Chief Police Officer, each Deputy Chief Police Officer and members or appointees of ACT Policing attached, assigned or seconded to the Territory Investigation Group and ACT Policing Intelligence as such persons. A copy was also annexed to the affidavit.
In his evidence, Detective Sergeant Laverty explained the structure of the Territory Investigation Group. Operation Galvanic was, the documents produced in answer to subpoena showed, an operation of the Territory Investigations Group. Senior Constable Williams and Detective Sergeant Laverty were members of that Group which later changed its name to Criminal Investigations. Thus, they were members of staff of the Commission.
The documents produced on subpoena and admitted into evidence also included a large number of emails between investigators in ACT Policing and officers of the Commission, particularly those who were responsible for the compulsory examinations of Mr Will and others.
Officers of ACT Policing were involved in providing information of various matters, from the attitude expressed by the intended examinees, when served with summonses to attend, to the availability of court rooms for the examination.
The emails show a close involvement of ACT Policing investigators in preparation for the examination, including that, as a result of their involvement, the Examiner had “rejigged the batting order”, the Examiner wished to speak to the officers before the examination, and that ACT Policing was doing some of the “driving” of who should be examined and how often.
The documents also showed a clear enthusiasm by officers in ACT Policing for the assistance that a compulsory examination by the Commission could achieve for them.
It was clear to me, too, that the Commission was keen to assist and made it clear that it was enthusiastic about the contribution it could make through the compulsory examination. There was a sense of meeting investigators’ expectations (eg “I can report that Kyle Williams seems happy with the process so far”) and an expectation of further assistance (eg “[The Examiner] even had a chat with some of the ACT Policing people about the possibility that we could assist with other jobs in the future”).
The emails did show a slight degree of hubris; one AFP officer noted about the examination, “I want to come and watch the cat get skinned!!” While quite inappropriate and even juvenile, it does not seem to me that these matters undermined the legal position.
An issue that also arose in these proceedings, and about which the emails produced in response to Mr Will’s subpoena throws some light, on its genesis, is the nature and effect of the authority under s 25A(3) of the Australian Crime Commission Act for persons to be present at the examination of Mr Will to which I have earlier referred above (at [117]).
This authority was a long list of two officers of the Commission and 18 officers of the AFP. The emails show that the AFP, particularly Senior Constable Williams, provided to the Commission the names of those members of the AFP who were to be present and subsequently made some changes incorporated into the authority. This followed a request from the Commission. The emails show that it was left entirely up to the AFP as to which officers of those authorised would actually attend.
Unsurprisingly, much of the evidence already available to investigators was made available to members of the Commission who were undertaking the examination. The material included transcripts of conversations recorded by court authorised listening devices, an “induced statement” and other witness statements.
A few days after the examinations, requests were being made by ACT Policing for transcripts of the examination and for the release to relevant prosecuting authorities and the courts of the evidence given by Mr Will and other examinees. This is somewhat troubling in the light of what the Examiner told Mr Will, to which he had referred to in his evidence I have noted above (at [46]). What the Examiner said is as follows:
At the end of this hearing I’m going to make a direction that will prohibit the publication of these proceedings otherwise then in accordance with the terms of the directions which I’ll make at that particular time. Now, effectively, that will mean that no-one will get access to the evidence that you give to me today unless I authorise that access. Now, there is a qualification to that and its [sic] this. The Chief Executive Office [sic] of the Australian Crime Commission may in writing vary or revoke a direction that I make concerning access to your evidence. However, he is prohibited from varying or revoking my directions if a consequence of him doing that might mean that it might prejudice the safety, the reputation of some person or if it might prejudice the fair trial of a person who has been or may be charged with some offence. I mention that to you, Mr Will, because if as a result of the questions you’re asked today and the answers you give to me, there arises in your mind any concerns as to whether the safety, the reputation or even the fair trial of some person might be prejudice by the release of your evidence to some other party, then I would like you to raise those concerns with me or you can ask your lawyers to raise those concerns with me. Because I will take into consideration any such concerns in making my decision as to who, if anyone, should be allowed to have access to the information that you give to me during the course of this hearing.
Also produced with that material was an examination summary prepared by the Commission. It was submitted by Mr Will’s counsel that it contained derivative use material. It was, however, a detailed summary of the examination itself and what Mr Will had said. There was not, so far as I could see, any incriminating material referred to in the document which had been derived from what Mr Will had said in the examination, or from investigations conducted as a result, and which would be admissible in his trial in the face of the prohibition on publication of the actual examination itself.
I also had a copy of a transcript of the examination of Mr Will. Initially, it showed that he denied any knowledge of the aggravated robbery at Mawson apart from what he had learnt from the media and denied any involvement in it. Later, as a result of the playing to Mr Will records of electronic surveillance material and comments by the Examiner suggesting that he re-think the evidence he was giving, Mr Will said that he wanted to clarify aspects of the evidence he had earlier given and then he made full and detailed admissions about his knowledge of and involvement in the planning for the aggravated robbery at Mawson and dealing with the various matters after it.
82To suggest that preserving the legitimate forensic choices that are open to an accused at a criminal trial would permit, let alone encourage, the pursuit of falsehood misstates the fundamental character of a criminal trial. Reference to the pursuit of falsehood may suggest that a criminal trial is an inquisition into the truth of the allegation made. It is not. Subject to the rules of evidence, fairness and admissibility, each of the prosecution and the accused is free to decide the ground on which to contest the issue, the evidence to be called and the questions to be asked. Reference to the pursuit of falsehood may suggest that legitimately testing the strength of the prosecution's proof is somehow dishonest. It is not.
83Accepting either suggestion would set at nought the fundamental principle stated by this Court, nearly eighty years ago, in Tuckiar v The King, that counsel for an accused has "a plain duty, both to his [or her] client and to the Court, to press such rational considerations as the evidence fairly [gives] rise to in favour of complete acquittal" or conviction of a lesser charge. That "plain duty" arises because, whether an accused "be in fact guilty or not, [the accused] is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he [or she] committed" (emphasis added).
(footnotes omitted)
Nevertheless, the necessary nuance to the reference to “falsehood” does not detract from the need for the bold submission to be explained as to how, in fact, Mr Will’s right to give evidence had actually been removed when, in the light of the likely evidence to be given at the trial he, in practice, appears never to realistically to have been able to exercise that right if it meant being subject to cross-examination.
The duties of his lawyers, though hinted at in the evidence of Mr Perkins, were never explored and the state of the evidence did not show any circumscribing of the duties required of his counsel as explained in Tuckiar v The King (1934) 52 CLR 335 at 346.
Should a stay be granted?
The last two grounds are conveniently to be dealt with together for they are ineluctably related.
The remedy that Mr Will seeks is a permanent stay of the trial on the charge of aiding, abetting, counselling or procuring the offence of aggravated robbery at the Mawson Club – the basis of the application is that the trial will, on account of the compulsory examination of Mr Will by the Commission and the subsequent use of the evidence he there gave, make the trial so unfair as to be an abuse of process.
It is important to note that the application is different from many of the applications sought in the authorities to which reference was made in argument and in these reasons. It is not, as it was in X7 v Australian Crime Commission, an application to stay the compulsory examination. At the other end of the process, it was not, as it was in R v Elfar, an appeal against conviction. The application was for a stay of the trial itself of the offence of aiding, abetting, counselling or procuring Mr Melkie and Mr Munro to commit the aggravated robbery at Mawson.
There is no doubt that the courts have from early times had a power to see that its processes were not abused by proceedings that were taken without reasonable grounds so as to be vexatious and harassing: Metropolitan Bank Ltd v Pooley (1885) 10 AppCas 210 at 220-1. These powers to prevent abuse of the court’s processes, have been traditionally seen as including a power to stay proceedings instituted for an improper purpose as well as those that are frivolous, vexatious or oppressive: Ridgeway v The Queen (1995) 184 CLR 19 at 74-5.
This power may well now be seen as an attribute of judicial power: Dupas v The Queen [2010] HCA 20; 241 CLR 237 at 243; [15].
What amounts to abuse of the court process is, however, insusceptible of a formulation comprising closed categories: Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at 265; [9]; R v Carroll [2002] HCA 55; 213 CLR 635 at 650-1; [49]. Nevertheless, McHugh J observed in Rogers v The Queen (1994) 181 CLR 251 at 286:
Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
Following the adoption by Mason CJ in Jago v District Court of New South Wales at 30 of what had been said by Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 482, the majority in Batistatos v Road Traffic Authority of New South Wales at 264-5; [8] described the policy considerations behind the concern of abuse of process in relation to criminal proceedings, especially in comparison to civil proceedings, in both of which the power is available. The Court said:
However, the power does so with somewhat different emphases attending its exercise. In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said:
The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.
These considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law.
(footnote omitted)
The question then is whether a stay should be granted where there is a risk of unfairness in the prospective trial.
In Barton v The Queen (1980) 147 CLR 75 at 111, Wilson J explained the basis for a stay in criminal proceedings as follows:
in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.
This formulation has since been followed, requiring a fundamental defect which goes to the root of the trial: Jago v District Court of New South Wales at 34, 56, 75; R v Glennon at 605-6; Dupas v The Queen at 245; [18].
The courts have also emphasised that the grant of a stay is an exceptional remedy and only available where the trial court cannot otherwise protect the accused from unfairness. As Mason CJ and Toohey J said in R v Glennon at 605:
[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”.
(footnotes omitted)
See also Canham v Magistrates Court (ACT) [2014] ACTSC 14; 9 ACTLR 84 at 95-7; [32]-[34].
If, as Mr Will contends, the compulsory examination and disclosure of the evidence he gave in it has rendered the trial so unfair as to be an abuse of process, then the proceedings must be stayed unless there are steps that can be taken to avoid that unfairness.
Despite the High Court finding in X7 v Australian Crime Commissioner that the compulsory examination of the appellant was improper, the Court of Criminal Appeal nevertheless directed that the proceedings against him not be stayed: X7 v The Queen [2014] NSWCCA 273; 246 A Crim R 402. In that case, Bathurst CJ with whom Beazley P and Hidden, Fullerton and RA Hulme JJ agreed, identified at 419-20; [91]-[93] three matters to be taken from the relevant cases:
(a)the power to grant a stay will be rarely exercised, especially given the significant countervailing considerations of the interests of the community and the victims of crime in the enforcement of the criminal law;
(b)where there is a fundamental effect of such a nature that there is nothing a judge can do in the conduct of the trial to relieve against its unfair consequences, a stay must be granted; and
(c)irrespective of demonstrated unfairness, a stay may be granted when the proceedings are an abuse of process.
His Honour considered the authorities including X7 v Australian Crime Commissioner and Lee v The Queen and concluded at 423; [109]-[110] that neither:
109… compels the conclusion that the fact of an unauthorised examination, on its own, requires an order that there be a permanent stay of criminal proceedings relating to the matters the subject of the examination. To grant a stay in such a case would be to grant one without regard to the nature and extent of the unfairness which results. It would also fail to take into account the interests of the community in the prosecution of serious criminal offences.
110If in fact the examination was productive of actual unfairness, it seems to me the person affected would be able to establish that fact without suffering further unfairness or injustice. In the present case an application could be made under s 25A(10) of the ACC Act to vary the direction previously made, so that the content of the examination could be released to a judge hearing the application for a stay, to enable it to be determined if there was any actual unfairness in the particular case.
In this case, I have had the advantage of access to the transcripts of the compulsory examination as it was within the varied non-publication direction to distribute it to the Court. Mr Will has also had access to it, though counsel for the Crown did not.
Apart from the general assertion that Mr Will has now had his forensic choices limited, no specific allegation of unfairness has been made in reliance on specific parts of the evidence given.
This is not insignificant for the NSW Court of Criminal Appeal in X7 v The Queen dismissed the appeal which had challenged the trial judge’s refusal to grant a stay. That decision was also challenged but the application for special leave to appeal was refused. In refusing special leave, French CJ and Kiefel J said in X7 v The Queen [2015] HCATrans 109 (15 May 2015):
In our view, the absence of practical unfairness arising at trial is always a relevant consideration in the exercise of the discretion to refuse a permanent stay.
Of course, such comments have no precedent value but are not to be ignored. The significance of such comments in special leave applications was explained by Bathurst J in X7 v The Queen at 421; [97] as follows:
These remarks do not constitute any precedent binding on this Court: Attorney General for the Commonwealth v Finch (No 2) (1984) 155 CLR 107 at 115 and North Ganalanja Aboriginal Corporation v The State of Queensland (1996) 185 CLR 595 at 643. However, they provide “guidance” to this Court, Bird v Colonial Spark Plugs Proprietary Limited (1942) 66 CLR 43 at 47, amounting to “dicta”, Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360 at 368, and which has persuasive value: Sir Anthony Mason, “The Use and Abuse of Precedent” (1988) 4 Aus Bar Rev 93 at 97 and Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253 at [62]. At the very least, it indicates that the issue presently before this Court is not concluded by X7 (No 1).
In this case, the compulsory examination of Mr Will was not unlawful. It is now accepted that an irregularity itself is not sufficient to justify a stay of the trial: R v Elfar at [101].
There has, further, been identified what has become known as “practical unfairness” as noted above (at [404]). No specific unfairness has been identified; Mr Will does not claim that his evidence given to the Commission is untrue, nor that this evidence would prevent him from giving exculpatory evidence at his trial. While I accept that to present such evidence on a pre-trial application such as this could be problematic, it was not even the subject of general submission.
Thus, the risk of unfairness suggested by Hayne and Bell JJ in X7 v Australia Crime Commission was directed to the question of whether the appellant should be examined where the privilege from self-examination had been abrogated but at a time when he had been charged. Their Honours said at 127; [71]:
Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.
This is not the position of Mr Will. He had not, at the time of his examination, been charged; he was not asked about pending charges. His examination was conducted well before he was charged even though I accept that the police were wishing, indeed, intending, to charge him were enough evidence available.
It would appear, however, that access of the prosecution, both counsel and instructing solicitors, as well as associated staff, to the evidence, including the transcript of Mr Will’s compulsory examination, would be likely to derogate from the accusatorial nature of his trial.
The Crown has accepted that this could be prevented, without necessarily conceding its necessity. In my view, the authorities do require that.
I accept that this may be a little cautious. It has been cogently argued extra-curially by Justice Mark Weinberg in “The impact of special commissions or inquiry/crime commissions on criminal trials” (2015) The Judicial Review 199 at 233 that the different approach of the High Court in Seller v The Queen [2013] HCATrans 204 (6 September 2013) to Lee v The Queen, though the latter was heard only some eight months or so afterwards, was because there was a clear and definite advantage in the latter case to the Crown which had been, by disclosure of the evidence in the compulsory examination, alerted to the defences of the accused. That situation does not pertain here.
In this case, however, there is a further complication because there has been a disclosure of the contents of much of Mr Will’s evidence to the Commission in the trial of Mr Munro. The evidence satisfies me that, effectively, the transcript of his evidence constituted a “proof” of his evidence, though it is also clear that not all of what he said to the Commission was also said at the trial.
It seems to me, therefore, that this evidence should also be subject to a relevant
non-disclosure regime. It is, of course, protected, by the certificate Mr Will was given under s 128 of the Evidence Act, from direct use, but it seems to me that it has a more problematic aspect in that it would permit the prosecution at his trial to know indirectly what they cannot, if I implement my proposal, know directly.
Since the inability of the prosecution to access that material will, in my view, remove the vice that the compulsory examination has caused, the fact of the examination will not justify the stay.
The question of knowledge of the police needs also to be addressed. I have found above (at [334]) that the presence of Detective Sergeant Laverty and Federal Agent Williams at the compulsory examination was not unlawful nor were they prevented from investigating further as a result of their presence and deriving further admissible evidence as a consequence.
In this regard, I note that disclosure to police officers did not render the conviction of Mr Elfar and Mr Golding a miscarriage of justice: R v Elfar at [106].
I also note that, in Lee v The Queen, the transcripts of the compulsory examination had been disclosed to police as well as prosecutors but the prohibition implicit in the Court’s direction for a new trial was limited to prosecutors.
I further note that a very robust approach was taken to such a position in Zanon v Western Australia [2016] WASCA 91; 50 WAR 1. That Court followed what had been said about R v Independent Broad-Based Anti-Corruption Commissioner in A v Maughan and concluded that a ground of appeal against conviction on the basis that the prosecutors at the trial of one of the appellants had access to evidence he had given at a compulsory examination should not be upheld. McLure P, with whom Buss JA agreed at 27; [144]-[145] gave the following reasons for doing so:
144There is no suggestion in the judgment in R v IBAC that if and when the appellants were later charged and prosecuted, the companion principle might then apply. If that was the intention, it is reasonable to expect that the High Court would have made that point, knowing the examination was to be in public. With a compulsory examination conducted in public, confidentiality in the source documents would be lost. It would be very odd indeed to apply the companion principle in those circumstances. Prima facie, the effect of R v IBAC is that the companion principle has no application to information obtained under compulsion prior to the commencement of the prosecution of an offence.
145A basis to reconcile Lee No 2 with R v IBAC is that SWL was compulsorily examined after he had been charged with the firearms offences; the facts of the firearms offences were closely linked with the drugs offences with which both men were charged; in those circumstances, s 13(9) applied to all offences.
The references in [145] to SWL is to the second appellant in Lee v The Queen, called in that paragraph Lee No 2.
It may be that the holding of such a compulsory examination in public is a legislative sign that the companion principle will not apply. I am not convinced that this is so. Indeed, I respectfully disagree that the companion principle does not apply after a person has been charged so as to exclude from disclosure to prosecutors conducting the prosecution of a person charged with an offence about which he or she has properly been examined in an examination in which the privilege from self-incrimination has been abrogated.
It may be that the High Court did not say so because, given the state of the authorities, especially Lee v The Queen, it was obvious.
As to the alleged reconciliation of the two decisions, the suggestion is not valid, for the first appellant had been examined before charges had been laid against him (see Lee v The Queen at 459; [2]) yet the conviction against him was also set aside.
If I am wrong in this respectful criticism of the Court in Zanon v Western Australia, then it is certainly a direct authority that supports rejection of Mr Will’s application for a stay.
I do not consider that this is a case where there are no steps that can be taken that would prevent a miscarriage of justice.
Disposition
Having given the matter careful thought and attempting to understand the complex and not always easy to understand and to reconcile authorities in this area, I have come to the view that the application for a stay must be dismissed.
I am, however, concerned that this can only be done if proper precautions are taken and these are that:
(a)the prosecutor or prosecutors, instructing solicitor or solicitors, and any assisting paralegals directly involved in prosecuting Mr Will must have, have had, and will have until the conclusion of the trial, no access to the transcript of his compulsory examination on 21 May 2010, any reports of the evidence given by him, made to the other persons who were present at that examination or who have seen the transcript of it, nor to access to the transcript of the evidence given by Mr Will at the trial of Mr Munro or to any reports by other persons of what Mr Will there said;
(b)the prosecutor must so certify on behalf of himself or herself and the solicitors and paralegals to the trial judge that the conditions above have been met and undertake that, until the conclusion of the trial, will be met;
(c)that this order does not prevent Mr Will making an application on proper grounds for any or all of the evidence of Detective Sergeant Michel Laverty or Federal Agent Kyle Williams not to be admitted in evidence at the trial should it be shown that its admission would be unfair; and
(d)that this order does not prevent Mr Will making a further approach for a stay of the proceedings if further evidence shows that there is a basis for a court finding that the trial will suffer a fundamental defect which cannot be remedied by direction or other decision of the trial judge.
Before making final orders, I shall give the parties the opportunity to make submissions on them.
| I certify that the preceding four hundred and twenty-eight [428] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 29 November 2017 |
APPENDIX
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