R v X

[2014] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v X [2014] NSWCCA 168
Hearing dates:	19 May 2014
Decision date:	22 August 2014
Before:	Simpson J at [1] Hidden J at [2] Hamill J at [63]
Decision:	Appeal allowed - matter remitted to District Court
Catchwords:	CRIMINAL LAW - Crown appeal against an order of the District Court permanently staying the trial of the respondent - compulsory examination of the respondent by the Australian Crime Commission about the subject matter of the charges against him - whether the fact of the examination itself sufficient to warrant a stay - necessity to examine the circumstances of the particular case
Legislation Cited:	Criminal Appeal Act 1912 Australian Crime Commission Act 2002 Royal Commissions Act 1902 (Cth) Evidence Act 1958 (Vic) Criminal Assets Recovery Act 1990 (NSW) New South Wales Crime Commission Act 1985
Cases Cited:	X7 v Australian Crime Commission [2013] HCA 29, 248 CLR 92 Australian Crime Commission v OK [2010] FCAFC 61, 185 FCR 258 R v CB [2011] NSWCCA 264 R v Seller & McCarthy [2013] NSWCCA 42 Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23 R v Regan [2002] SCC 12 Canada (Minister of Citizenship and Immigration) v Tobiass [1997] 3 S.C.R. 391 (S.C.C.) R v O'Connor [1995] 4 S.C.R. 411 (S.C.C.) Hammond v The Commonwealth (1982) 152 CLR 188 Lee & Anor v New South Wales Crime Commission [2013] HCA 39, 302 ALR 363 Lee v The Queen [2014] HCA 20 Jamal v Director of Public Prosecutions [2013] NSWCA 355 DPP v Shirvanian (1998) 44 NSWLR 129 R v Littler [2001] NSWCCA 173 R v Westley [2004] NSWCCA 192
Texts Cited:	Maxwell's On the Interpretation of Statutes
Category:	Principal judgment
Parties:	Regina (appellant) X (respondent)
Representation:	Counsel: Ms N Adams SC & Ms G Namey(appellant/Crown) Mr T Molomby SC & Mr B Longville(respondent) Solicitors: S Kavanagh, Solicitor for Public Prosecutions (appellant/Crown) A O'Brien, O'Brien Lawyers (respondent)
File Number(s):	2010/419359
Decision under appeal	Court or tribunal: District Court Date of Decision: 12 September 2013 Before: Williams ADCJ File Number(s): 2010/419359

Judgment

1. SIMPSON J: I agree with Hidden J. I also agree with the additional observations of Hamill J.

2. HIDDEN J: This is an appeal by the Director of Public Prosecutions, pursuant to s 5F(2) of the Criminal Appeal Act 1912, against the order of a District Court judge permanently staying proceedings on indictment against the respondent. He was to face trial upon charges of being an accessory before the fact to the manufacture of a large commercial quantity of a prohibited drug, methylenedioxyamphetamine (MDA), and supplying a large commercial quantity of the same drug.

3. Put shortly, it is alleged that the respondent was involved with a number of men in the manufacture of a large quantity of the drug at a property at Werris Creek. As to the first count, it is the Crown case that in late November 2010 he took part in setting up a laboratory at that property, where the drug was manufactured by three other men. It is then alleged that on 15 December 2010 the drug and the equipment used to manufacture it were packed into three vans for transport from the site. The respondent drove one of those vans, which was stopped by police in the Quirindi area for a random breath test. Police searched the van and found the laboratory equipment, and a further search revealed a large amount of MDA, well in excess of the commercial quantity. This is the basis of the second count.

4. On 15 December 2010, the respondent was charged with possessing drug manufacturing apparatus, to which he later pleaded guilty. However, on 17 December he was charged with manufacturing and supplying a large commercial quantity of MDA. In the District Court the charge of manufacturing the drug was changed to one of accessory before the fact of that offence.

5. The respondent's trial was to commence on 10 September 2013. In the meantime, on 2 March 2011, a summons was issued requiring his attendance at the Australian Crime Commission for a compulsory examination under s 25A of the Australian Crime Commission Act 2002. The examination took place on 8 March 2011, and during it he was questioned about the subject matter of the charges against him. By s 30(2) of the Act he was required to answer those questions. However, the combined effect of subss (4) and (5) of that section is that any answer which he claimed might tend to incriminate him could not be used against him at his trial. He made that claim in respect of the whole of his evidence.

6. Section 25A(9) of the Act provides:

"An examiner may direct that:

(a) any evidence given before the examiner; or

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

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

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

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

By subs (10), the Chief Executive Officer of the Australian Crime Commission may vary or revoke a direction under subs (9), but must not do so if that direction might, among other things, "prejudice the fair trial of a person who has been or may be charged with an offence": subs (11).

7. In the present case the examiner made a non-publication order under subs (9). The order was directed "to any person including New South Wales investigators who may be involved in the investigation of the matters relating to" the respondent, and also including "any member of the office of the New South Wales Director of Public Prosecutions and any member of the judiciary or judiciary staff of the court who might be involved in any way in the prosecution ... ." On 27 August 2013, the Chief Executive Officer varied that order so as to permit disclosure of the transcript of the examination to the respondent, his lawyers and the court. As a result, when the application for a permanent stay was heard the trial judge had access to the transcript, as did the respondent and his counsel and solicitor, but the Crown prosecutor and his instructing solicitor did not.

8. It is because of that order (as varied) that the court was closed for the hearing of this appeal and the respondent is not named.

9. The trial judge determined that the prosecution should be stayed in the light of the decision of the High Court in X7 v Australian Crime Commission [2013] HCA 29, 248 CLR 92. The plaintiff in that case had been charged with indictable Commonwealth offences and, while awaiting trial for them, he underwent an examination under the Australian Crime Commission Act (referred to in the judgments as the "ACC Act") in which he was asked and answered questions concerning the subject matter of the offences with which he had been charged. The examiner had given a direction under s 25A(9), so that prosecutors and police officers involved in the prosecution were not entitled to receive a copy of his evidence.

10. The plaintiff commenced proceedings in the original jurisdiction of the High Court, seeking declaratory and injunctive relief. A case was stated for the consideration of the Full Court, raising several questions of law. The question which is material for present purposes asked whether the relevant provisions of the ACC Act empowered an examiner "to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerns the subject matter of the offence so charged?" The court, by majority (Hayne, Bell and Kiefel JJ; French CJ and Crennan J dissenting), answered that question "No".

11. In a joint judgment, Hayne and Bell JJ, with whom Kiefel J agreed in a separate judgment, said at [70]-[71] (127):

"The relevant provisions of the ACC Act should not be construed as authorising the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge. Permitting the Executive to ask, and requiring an accused person to answer, questions about the subject matter of a pending charge would alter the process of criminal justice to a marked degree, whether or not the answers given by the accused are admissible at trial or kept secret from those investigating or prosecuting the pending charge.

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."

12. The question was one of statutory interpretation. Their Honours applied the established rule of construction known as the principle of legality, drawn from Maxwell's On the Interpretation of Statutes, that the legislature should not be understood to have departed "from the general system of law" without expressing its intention "with irresistible clearness ...": [86] - [87] (131-2). Their Honours said that for this purpose questions of fairness "must be put to one side because they are not relevant": [90] (133).

13. At [97] (134-5) ff their Honours examined the process of criminal justice, emphasising its accusatorial nature. At [99] (135) their Honours said:

"The criminal trial process is accusatorial in the sense that it is for the prosecution to decide what charge is preferred against the accused. The trial process is accusatorial in the further sense that the prosecution bears the onus of proof of all elements of the charge that is laid. But describing these aspects of a criminal trial as 'accusatorial' must not distract attention from the much wider and no less fundamental observation that the whole process of criminal justice, commencing with the investigation of crime and culminating in the trial of an indictable Commonwealth offence, is accusatorial." (Footnote omitted)

14. At [101] (136) their Honours added:

"As will be shown, the whole of the process for the investigation, prosecution and trial of an indictable Commonwealth offence is accusatorial. It is accusatorial in the sense that an accused person is not called on to make any answer to an allegation of wrong-doing, or to any charge that is laid, until the prosecuting authorities have made available to the accused particulars of the evidence on which it is proposed to rely in proof of the accusation that is made. And even after that information has been provided, the accused person need say or do nothing more than enter a plea of guilty or not guilty to the charge. If the accused person chooses to plead not guilty at trial, he or she is entitled to put the prosecution to proof of the charge and, as part of that process, to test the strength of the evidence which the prosecution adduces at trial. The only relevant limit on the accused person's testing of the strength of the prosecution's case is provided by the accused person's instructions to his or her lawyer. The lawyer cannot test the prosecution case in a manner inconsistent with the accused person's instructions."

15. After examining the privilege against self-incrimination and the "right to silence", and tracing the criminal process from charge to trial, their Honours said at [118] (140):

"The preceding description of the investigation, prosecution and trial of an indictable Commonwealth offence demonstrates that, at every stage, the process of criminal justice is accusatorial. It is against this background that the provisions of the ACC Act, particularly s 28(1), must be construed. If these provisions were to permit the compulsory examination of a person charged with an offence about the subject matter of the pending charge, they would effect a fundamental alteration to the process of criminal justice."

Section 28(1) is the provision whereby an examiner may summons a person to appear for examination and to produce such documents or other things as are referred to in the summons.

16. After referring to some statutory modifications of the accusatorial process, their Honours said at [124] (142-3), in a passage cited by the trial judge in the present case:

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

Their Honours added at [125] (143) that "if an alteration of that kind is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment."

17. Their Honours went on to examine earlier decisions of the court which were relevant, albeit in different contexts, and the functions of the Australian Crime Commission set out in the ACC Act. There is, of course, in the Act no provision expressly authorising the examination of a person charged with an offence about the subject matter of that charge. The question was whether such authority might be found in the Act by necessary intendment. Their Honours concluded that it could not. After considering the Commission's investigative function, their Honours said at [147] (150):

"The performance of that investigative function is in no way restricted or impeded if the power of compulsory examination does not extend to examination of a person who has been charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge. The general provisions made for compulsory examination, when read in their context, do not imply, let alone necessarily imply, any qualification to the fundamentally accusatorial process of criminal justice which is engaged with respect to indictable Commonwealth offences."

18. It should be pointed out that the decision in X7 was handed down on 26 June 2013, well after the compulsory examination of the respondent. To have examined him about matters in respect of which he had been charged, provided that the safeguards afforded by s 25A of the ACC Act were in place, was consistent with authority prevailing at that time: Australian Crime Commission v OK (Emmett & Jacobson JJ, Spender J dissenting)[2010] FCAFC 61, 185 FCR 258. The view of the majority in OK was subsequently adopted by this court in R v CB [2011] NSWCCA 264 and R v Seller & McCarthy [2013] NSWCCA 42.

19. Of course, in X7 the court was not called upon to consider whether the consequence of the compulsory examination of a person awaiting trial for an offence about the subject matter of the charge should be a permanent stay of the prosecution. The trial judge in the present case said that X7 did not "create a class of persons who would be automatically entitled to a stay of proceedings" and that he was "still required to consider the case on its merits and to apply those principles relevant to taking the significant step of granting a stay of proceedings." (Although the principles stated by the majority were expressed to be referable to the trial of an indictable Commonwealth offence, that was simply a reference to the manner in which the question for the court had been framed. It was accepted before the trial judge that those principles were of general application.)

20. His Honour referred to authority on the remedy of a permanent stay, particularly to prevent an abuse of process, including Jago v The District Court of New South Wales & Ors (1989) 168 CLR 23. One of the cases to which he referred was the Canadian decision of R v Regan [2002] SCC 12, from which his Honour cited the following passage in the judgment of the majority at para 54:

"Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question

will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice."

(Reference to authority omitted.)

21. His Honour examined the transcript of the examination of the respondent, noting that it related to the matters charged "virtually in its entirety" and "was conducted at times in a forceful manner by counsel assisting the examiner ... ." He appears also to have been concerned that material in the examination may have come into the possession of investigating police, contrary to the examiner's non-publication order. He noted that there had been a previous examination of the respondent by the Crime Commission and said that it was "somewhat difficult to understand" why the examination in question was conducted, given that the respondent was only asked about the matters for which he was charged.

22. He also noted that on 2 March 2011, the day upon which the summons requiring the respondent's attendance for compulsory examination was issued, two police officers had attended upon him in custody to question him about the charges but he had declined to be interviewed. His Honour said that there was no evidence that at that stage the police knew the whereabouts of the Werris Creek property where the manufacture of the drug was said to have been undertaken. At the examination on 8 March the respondent was questioned at some length about the location of the property.

23. On 20 March, twelve days later, police went to the Werris Creek area and on the following day, after making enquiries in the area, ascertained the address of the property. They went there on 22 March and, armed with a warrant, searched it. Among items seized during that search was a cigarette butt on which was later found DNA consistent with the respondent's profile.

24. His Honour noted a submission by counsel then appearing for the respondent that there was an "overwhelming inference" that information obtained during the examination about the whereabouts of the property had been passed on to investigators. The Crown prosecutor before him had argued that there was no proof "of anything like that occurring ... ." This material led his Honour to make these observations:

"No other evidence has been placed before me in regard to that situation. However, it is certainly an unusual coincidence, to say the least, that despite being aware of Mr X's arrest in December 2010, it was not until 2 March 2011 that a summons was issued and only apparently after he had been visited by police in custody and declined to provide or to answer further questions."

After noting the course of events from the issue of the summons on 2 March to the finding of the property later that month, his Honour added:

"Whilst that does not amount to proof per se, it certainly raises a serious issue as to the likelihood that this is just a coincidence, which tends to suggest, even as the law then stood, the examination may have been for a collateral purpose rather than to assist the ACC in its functions and obligations."

25. Later in his Honour's reasons his Honour expressed his conclusion as follows:

"Given the timing, nature and scope of the ACC examination I am of the view that the accusatorial process has been fundamentally flawed such that it is now impossible for Mr X to have a fair trial in accordance with the commonly recognised rights and privileges that have, for generations, been part of the criminal law of Australia inherited from the country that we derived our laws and usages from ab initio. That applies even if the trial judge was to exclude any relevant evidence such as the evidence in relation to the Werris Creek property. That flaw, in my view, outweighs by far the interests of the public and the state in having criminal cases prosecuted and in having serious criminal offending dealt with. To adopt what was said in R v Regan, which I have referred to above, the prejudice to the applicant would be perpetuated throughout the trial process and there is now no appropriate remedy that would overcome that problem."

THE APPEAL

26. In this court the Crown was represented by the Crown Advocate, Ms Adams SC, appearing with Ms Namey,neither of whom had appeared in the District Court. The respondent was represented by Mr Molomby SC and Mr Longville. Mr Longville had represented the respondent in the District Court.

27. A further variation of the non-publication order made by the ACC examiner, pursuant to s 25A(10) of the Act, was made on 10 April 2014 for the purpose of the appeal. This provided for disclosure to the members of this court and relevant registry staff, and to the staff and lawyers of the Director of Public Prosecutions involved in the appeal, only for confidential use in connection with it. For more abundant caution, by agreement with Mr Molomby, Ms Adams had access to the transcript of the examination but it has not been disclosed to her junior or to her instructing solicitor (even though that solicitor is dealing only with this appeal and is not involved in the prosecution in the District Court).

28. The only ground of appeal is that the trial judge erred in permanently staying the prosecution. Put shortly, Ms Adams contended that the trial judge's finding that information from the respondent's examination may have been disclosed to the prosecution was not open on the evidence. Alternatively, if his Honour's decision was founded simply upon the fact that there had been a compulsory examination which, in the light of the decision in X7, was unlawful, he erred in concluding that there was no remedy available to ensure that the respondent received a fair trial.

29. Mr Molomby argued that the evidence did justify the inference that material from the examination had been disclosed to investigating police but that, in the event, that was not a matter about which his Honour expressed any concluded view. His Honour ordered a stay because the compulsory examination was such a fundamental departure from the accusatorial process that the respondent could not have a fair trial.

30. R v Seller & McCarthy (supra) was a successful appeal by the Crown against an order for the permanent stay of a trial after the disclosure of evidence in compulsory examinations under the ACC Act. The case was decided before X7 and, in any event, did not deal with the issue which arises in the present case. However, at [110] the Chief Justice expressed succinctly the principles relating to a permanent stay. After referring to the exposition of them by McClellan CJ at CL in CB (supra), his Honour said:

"I would merely add what was said by Mason CJ in Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 30, where the Chief Justice indicated his agreement with Richardson J in Moevao v Department of Labour (1980) 1 NZLR 464 at 482 that the justification for a stay is to prevent the court process being employed in a manner inconsistent with the recognised purpose of the administration of criminal justice and so constituting an abuse of process. Further, a stay will only be granted in an extreme case and the fundamental defect which warrants a stay must be such that there is nothing a trial judge can do to relieve against its unfair consequences: The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605."

31. Given that the trial judge in the present case referred to the Canadian decision of R v Regan (supra), it is appropriate to cite the expression of the relevant principles by the majority in that case. While the court there had regard to the Canadian Charter of Rights and Freedoms, the following passage at para 53 is a statement of the common law position:

"A stay of proceedings is only one remedy to an abuse of process, but the most drastic one: 'that ultimate remedy', as this Court in Tobiass, supra,(at para. 86), called it. It is ultimate in the sense that it is final. Charges that are stayed may never be prosecuted; an alleged victim will never get his or her day in court; society will never have the matter resolved by a trier of fact. For these reasons, a stay is reserved for only those cases of abuse where a very high threshold is met: 'the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the 'clearest of cases' (O'Connor, supra, at para. 68)."

The cases referred to in that passage are Canada (Minister of Citizenship and Immigration) v Tobiass [1997] 3 S.C.R. 391 (S.C.C.) and R v O'Connor[1995] 4 S.C.R. 411 (S.C.C.).

32. As I have said, the issue in X7 was the interpretation of the ACC Act, guided by the principle of legality. In all the judgments reference was made toHammond v The Commonwealth (1982) 152 CLR 188. In that case the plaintiff had been questioned at a Royal Commission about the subject matter of a charge in respect of which he had been committed for trial. The legislation governing the enquiry was the Royal Commissions Act 1902 (Cth) and theEvidence Act 1958 (Vic). The legislation required him to answer questions, making it an offence to refuse to do so, but it provided that any answers given were not admissible in any civil or criminal proceedings (except in proceedings for an offence against the Act in question). The High Court granted an injunction restraining any further examination of the plaintiff until the determination of his trial. The members of the court were unanimous in that decision.

33. The plaintiff had sought an injunction on the basis that his further examination in the Commission would constitute a contempt of the court at which he was to be tried. It appears that, although the questioning of the plaintiff was to be undertaken in private, the investigating police officers were present and the transcript of the examination was to be made available to the prosecution. Thus, to adopt the current terminology used in X7, the legislation provided the plaintiff with a direct use immunity in respect of his evidence but did not prevent its derivative use by the prosecution.

34. Gibbs CJ said (at 196) that to succeed the plaintiff had to establish "that there is a real risk, as opposed to a remote possibility, that justice will be interfered with" if his examination continued. The Chief Justice added that the "tendency of the proposed actions to interfere with the course of justice must be a practical reality - a theoretical tendency is not enough." In concluding that there was such a risk, his Honour said (at 198):

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

35. Deane J (at 206) said that the "mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice in that court." His Honour continued:

"On the other hand, it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court. Such an extracurial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court."

36. It was the ambit of the principles expressed in that case which was the subject of consideration in X7. It is not necessary to examine their Honours' observations about this matter in any detail. It is sufficient to say that the majority found in the case support for their position: Hayne and Bell JJ at [127]-[136], Kiefel J at [161]; just as the minority, by distinguishing the case on its facts, did for theirs: French CJ and Crennan J at [31]-[36].

37. In their joint judgment, French CJ and Crennan J examined the "protective provisions" of the ACC Act to be found in s 25A and s 30, and said at [57]:

"These safeguards are capable of preventing a compulsory examination from occasioning an unfair burden on the examinee when defending criminal charges. At trial, the onus remains on the prosecution to prove the guilt beyond reasonable doubt of the accused, without the assistance of the accused. The accused may remain silent at the trial, or not, and take whatever course is desired at the close of the prosecution case, without the risk of being confronted with compulsorily obtained evidence, the use of which is subject to statutory prohibition and safeguards. To the extent that the plaintiff will nevertheless be affected by compulsory examination after he has been charged with offences, that consequence is necessarily implied by the terms of the examination provisions ... ."

38. Their Honours concluded at [59]-[61]:

"If there is some failure to employ the protective provisions such that the prosecution would obtain an unfair forensic advantage, a trial court's inherent power to punish for contempt [119], including a power to restrain a threatened contempt, would be available, as in Hammond. A failure by an examiner to give any, or any adequate, direction under s 25A(9), or an error by the CEO in exercising the power to revoke or vary a direction under s 25A(10), would also be remediable by recourse to the constitutional writs issued pursuant to s 75(v) of the Constitution or s 39B(1) of the Judiciary Act1903 (Cth).

These considerations show that the examination provisions do not authorise executive interference with the curial process of criminal trials.

Whether a direction under s 25A will be sufficient to preclude the prosecution from obtaining an unfair forensic advantage in a trial cannot be stated in any categorical or exhaustive fashion. In considering the sufficiency of any such direction, it would be necessary to consider the nature of the self-incriminating evidence as well as the role of persons who had access to it, together with the use which such persons might make of it."

39. Lee & Anor v New South Wales Crime Commission [2013] HCA 39, 302 ALR 363, was a decision of all seven justices of the High Court, handed down not long after the decision in X7. It arose from an application by the respondent Crime Commission for orders seeking the compulsory examination of the appellants pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW). Both appellants had been charged with certain offences, and their examination would touch upon matters relevant to those charges. R S Hulme J had declined to order the examinations for that reason, but his Honour's decision was reversed in the Court of Appeal and that decision was upheld in the High Court.

40. The High Court's decision was again by majority: French CJ and Crennan J in separate judgments, and Gageler and Keane JJ in a joint judgment. The minority comprised the justices who had been in the majority in X7: Hayne, Bell and Kiefel JJ, each of whom delivered separate judgments.

41. Again, the question was one of construction of the relevant statute, in this case the Criminal Assets Recovery Act (referred to in the judgments as the "CAR Act"). The majority concluded that that Act did permit the examination of a person against whom criminal proceedings were pending about the subject matter of those proceedings, having regard to the purpose of the Act and its provisions, including the fact that the examination was conducted before the Supreme Court or a prescribed officer of the court. French CJ at [45] referred to the principles enunciated by the majority in X7, concluding "that the statute to which those principles were applied in that case differs materially from the statute to which they have to be applied in this case." His Honour set out succinctly at [47] what he saw as the relevant differences between the two Acts. The minority, on the other hand, saw the principles in X7 as directly applicable to the CAR Act.

42. It is unnecessary for present purposes to examine the relevant provisions of the CAR Act and the majority's interpretation of them. Ms Adams suggested that there were "some live issues as to reconciliation of certain statements made by the court" in the two decisions. She referred to a number of passages inLee.

43. At [54] French CJ expressly acknowledged the authority of the majority view in X7, saying:

"It may be accepted that the examination process under the CAR Act may, if it touches upon matters the subject of pending criminal charges against the examinee, affect the accusatorial character of the trial process. Even if the responses of the examinee to questions put to him or her were kept secret and were solely exculpatory or did no more than disclose defences to the charges, the examinee could be said to have suffered a forensic disadvantage. The nature of that disadvantage was discussed in the joint judgment of Hayne and Bell JJ in X7 [referring to the passage at [124] cited above]. I do not, with respect, disagree with anything their Honours said in the description of that disadvantage."

However, the Chief Justice went on at [55] to observe that "those considerations did not deprive the Court of Appeal of power to make the orders it did in this case." He then enumerated the features of the CAR Act which led him to that conclusion.

44. Crennan J said at [152]-[154]:

"Relying on Hammond, as applying beyond those precise circumstances, the appellants identified a discrete risk of interference in the pending criminal proceedings as the loss of the forensic advantage to them of exercising the right to remain silent, before and at trial, and to reserve their defences until the close of the prosecution case. It was said that being compelled to give an answer, including making an admission or partial denial in respect of an offence, thereafter constrained or embarrassed an examinee in the conduct of a defence (including the making of a plea of not guilty) so long as the examinee is represented by lawyers subject to their ethical obligations. The loss of that forensic advantage is necessarily implied by the effect of the express abrogation of the privilege against self-incrimination.

Legislatures have from time to time qualified the right to remain silent before and at trial; for example, legislatures commonly require an accused person to give an alibi notice prior to trial, and have otherwise made changes to the accusatorial process of a criminal trial which intrude upon the forensic or procedural advantages the common law accords to an accused person before or at trial.

If, without more, and notwithstanding the protections afforded to an examinee under the CAR Act, the loss of the identified forensic advantage occasions a real risk of interference with pending criminal proceedings, that risk is incidental to the achievement of legitimate legislative objects, and to that extent is implicitly authorised by the legislature of New South Wales."

(Footnotes omitted.)

45. Gageler and Keane JJ said at [322]-[324]:

"Hammond is illustrative of the proposition that a real risk to the administration of justice can arise where there is a real risk that the practical consequence of an exercise of a coercive statutory power would be to give to the prosecution in criminal proceedings 'advantages which the rules of procedure would otherwise deny' [Pioneer concrete (Vic) Pty Ltd v Trade Practices Commission (1982-83) 152 CLR 460 at 468]. Hammond is not authority for the proposition that a real risk to the administration of justice necessarily, or presumptively, arises by reason only of the exercise of a statutory power to compel the examination on oath of a person against whom criminal proceedings have been commenced but not completed where the subject-matter of the examination will overlap with the subject-matter of the proceedings. The majority in X7 does not appear to us to have embraced such a proposition.

There is a variety of ways in which, as a matter of practical reality, the examination on oath of a person against whom criminal proceedings have been commenced may have a tendency to give rise to unfairness amounting to an interference with the due course of justice in a particular case. The deprivation of a legitimate forensic choice available to the person in those proceedings may be one of those ways. However, we are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination. The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring that the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt[referring to rule 79 of the New South Wales Barristers' Rules; Tuckiar v The King (1934) 52 CLR 335 at 346].

The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle ... . To accept that a criminal trial 'does not involve the pursuit of truth by any means'[R v Apostilides (1984) 154 CLR 563 at 576] is not to condone as legitimate the pursuit of falsehood. The words of Lord Scarman in R v Sang [1980] AC 402 at 456, concerning the judicial discretion to exclude legally admissible evidence on the ground of unfairness, resonate more widely:

'The test of unfairness is not that of a game: it is whether ... the evidence, if admitted, would undermine the justice of the trial. Any closer definition would fetter the sense of justice, upon which in the last resort all judges have to rely: but any extension of the discretion ... would also undermine the justice of the trial. For the conviction of the guilty is a public interest, as is the acquittal of the innocent. In a just society both are needed'."

46. Both Hayne and Bell JJ, in dissent, responded to the last part of that passage. Hayne J said at [82]:

"To 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." (Footnote omitted.)

Bell J said at [266]:

"The entitlement of a person accused of criminal wrongdoing to remain silent is a fundamental common law right and not a mere forensic advantage. The exercise of the right, and the election to put the prosecution to proof, are decisions which may be made for a variety of reasons. To acknowledge that to compel an accused to give an account of the circumstances of an alleged offence in parallel civil proceedings may limit the capacity of the accused to put the prosecution to proof at the criminal trial is not to condone the pursuit of falsehood. To characterise it in that way risks inverting the assumption upon which our adversarial system of criminal justice proceeds, which is to say that the accused is entitled to be acquitted of a charge of criminal wrongdoing unless unaided by him or her the prosecution proves guilt." (Footnote omitted.)

47. It is convenient to refer to this decision as Lee v NSWCC. Those two appellants lived to fight another day in the High Court: Lee v The Queen [2014] HCA 20. That decision was handed down shortly after the present appeal was argued in this court. It is necessary to refer to it, although neither Ms Adams nor Mr Molomby has sought to make any further submissions arising from it.

48. Broadly speaking, this last decision arises from the same investigation which was the subject of Lee v NSWCC. It was also concerned with the compulsory examination of the appellants by the State Crime Commission, but under different legislation and at an earlier stage of the investigation. Lee v NSWCCarose from an application by the Crime Commission in June 2010 for the examination of the appellants, whereas Lee v The Queen arose from the examination of both of them in 2009. It is not necessary to go to the detail of their lingering and somewhat complex encounter with the criminal justice system. A brief chronology of it is to be found in the joint judgment in Lee v The Queen at [2]-[7] and [11], supplemented by the judgment of Crennan J inLee v NSWCC at [111]-[116].

49. In March 2011, at a trial in the District Court, both of them were found guilty of drug supply offences (and the first appellant, Jason Lee, was also found guilty of possessing a prohibited firearm). Their appeal to the Court of Criminal Appeal against those convictions was unsuccessful. Lee v The Queen was their appeal against that decision, and the High Court allowed the appeals and ordered a new trial. That decision was founded upon the separate examinations of each of them in 2009, those examinations exploring the subject matter of the prosecution. At the time of those examinations each of them had been charged with certain offences, but not those for which they were to face trial. Those charges were laid in the following year, the earlier charges (with some inconsequential exceptions) having been withdrawn and dismissed. The basis of the appeal was that prior to the trial the prosecution had had access to the transcripts of their evidence.

50. These examinations were conducted under the New South Wales Crime Commission Act 1985. In respect of the first appellant the Crime Commission had given a direction under s 13(9) of that Act, the effect of which was that the prosecution should not have had access to the transcript of his evidence. No such direction was given in respect of the second appellant, the son of the first appellant, but for the purpose of the appeal it was common ground that it should have been. In disregard of that protective provision, albeit inadvertently, the Commission had furnished transcripts of their evidence, together with documents produced by the first appellant, to the police and the Director of Public Prosecutions. It appears that that material disclosed to some extent matters which might be raised in defence of the charges.

51. The Court of Criminal Appeal had given judgment before the decision in X7. Put shortly, as the High Court recorded in the joint judgment at [40], that court had dismissed the appeals principally on the basis that there had been no "practical unfairness"to the appellants arising from the publication of the transcripts of their evidence. The High Court at [41] questioned that conclusion in the light of the facts of the case but, more importantly, added at [43]:

"These appeals do not fall to be decided by reference to whether there can be shown to be some 'practical unfairness' in the conduct of the appellants' defence affecting the result of the trial. This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice. The appellants' trial was altered in a fundamental respect by the prosecution having the appellants' evidence before the Commission in its possession."

52. Earlier, at [31]-[33], the court affirmed the basic principles governing the criminal justice system to which consideration had been given in X7, and at [45], after noting that the Court of Criminal Appeal's decision predated the judgment in X7, said, "Attention was therefore not directed to the principle of the common law respecting proof by the prosecution, unaided by the accused, which was in that case confirmed as fundamental to our system of criminal justice." Their Honours continued at [46]:

"In X7, it was held that the compulsory examination of a person with respect to an offence with which the person stands charged would be a departure, in a fundamental respect, from that principle. X7 was ultimately concerned with questions of statutory construction. Nevertheless, the point it makes about what may amount to a fundamental departure from a criminal trial as it is comprehended by our system of criminal justice is relevant to this case. It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution." (Footnote omitted)

53. In X7 and Lee v NSWCC the differences of opinion between the members of the High Court are clear enough. Nevertheless, X7 constitutes binding authority for the proposition that the examination under the ACC Act of a person who has been charged with an offence about the subject matter of the charge is not authorised by the Act and is, accordingly, unlawful. It is the consequences for the pursuit of the prosecution of a person who has been subjected to such an unlawful examination which is the crucial question in the present case. That was not a question which needed to be addressed in X7or Lee v NSWCC. Nor was it in Lee v The Queen, which was concerned with whether a miscarriage of justice had been occasioned by the unlawful disclosure to the prosecution of evidence obtained at an examination.

54. As noted above, the trial judge observed that the lengthy examination of the respondent was directed almost entirely to the subject matter of the charges he faces. As I have said, Mr Molomby's primary position was that, as a result of that unlawful examination, the respondent could not have a fair trial because of the fundamental alteration of the accusatorial process effected by it. He described the statements of principle by the majority in X7, particularly in [124] quoted above, as "a shift in the tectonic plates" of this area of the law. In effect, he argued, such an unlawful examination creates presumptive prejudice to the trial process, a prejudice which endures whether or not information from the examination has been disseminated. Accordingly, in such a case the remedy of a permanent stay, exceptional as it is, should be granted.

55. Ms Adams, on the other hand, submitted that the fact that a person has been subjected to an examination of the kind found to be unlawful in X7 does not necessarily mean that that person is entitled to a permanent stay of his or her trial. Rather, it is necessary to examine the circumstances of the case at hand to determine whether prejudice has been occasioned and, if so, whether it can be remedied in such a way as to ensure a fair trial. It is in this context that she relied upon the observations of French CJ and Crennan J in both X7 and Lee v NSWCC,and those of Gageler and Keane JJ in the latter case. In particular, she noted what the Chief Justice and Crennan J had to say in X7 about s 25A of the ACC Act, submitting that the protection of evidence at an examination from disclosure to the prosecution is an important matter in determining whether a stay should be granted.

56. There is no denying the importance of the principles governing the trial process expounded by the majority in X7. Nevertheless, Ms Adams' submissions on this aspect appear to me to be consonant with the authorities on the permanent stay of a criminal trial and should be accepted. In this context the following observations of Hayne J in Lee v NSWCC at [79]-[81] should be noted:

"The asking of questions and the compelling of answers about the pending charge inevitably interfere with the conduct of an accusatorial trial and embarrass the defence of the accused. The answers the accused has been compelled to give to the questions asked deprive the accused of forensic choices that otherwise would be legitimately open at trial to test the case which the prosecution advances. That is, the asking of questions about the pending charge and the compelling of answers to those questions work a fundamental alteration to the accusatorial process of criminal justice.

It is theoretically possible that, at the end of a trial, it may be said that the deprivation of those choices was anodyne in its practical effect. But that is not to the point. The issue is presented when it is sought to conduct the examination. The examination occurs before the trial has begun.

No doubt, it is important to notice that an examination under s 31D(1) was to be conducted before the Supreme Court or an officer of the Court prescribed by rules of court. It is to be assumed that the Court or its officer would act to prevent oppression of the person being examined and would act to prevent misuse or abuse of the process of examination, whether by limiting or precluding publication of what transpires at the examination, or otherwise. But if the trial of the person being examined is pending, the Court (or the officer of the Court) cannot know, and cannot predict, what might harm the defence of that person at trial. Those matters are unknown to, and unknowable by, the Court (or its officer) for the simple reason that the Court (or its officer) does not know, and cannot be told, what are or will be the accused's instructions to his or her lawyers at trial."

57. These observations highlight the fact that in that case, as in X7, the question for the court was whether an examination of a person about the subject matter of charges brought against him should be allowed to proceed. What his Honour said at [80] recognises that, where such an examination has occurred, its effect on that person's trial will depend upon the circumstances of the case at hand. In the present case, of course, there has not yet been a trial. However, the examination has been completed and, presumably, its effect on the trial can be assessed and measures to guard against such prejudice as it might cause can be considered.

58. Putting aside the question of the Werris Creek property, it is not apparent from the trial judge's reasons that that assessment was undertaken. As I have said, his Honour did say that X7 did not create a class of persons automatically entitled to a stay and that he was still required to consider the case on its merits. However, the decisive passage from his reasons quoted at [25] above conveys that it was the fact of the unlawful examination, without more, which was the basis of his decision. I might add that any assessment his Honour might have made of the prejudice caused to the respondent by the examination, and of any measures which might have remedied it, was complicated by the fact that the prosecutor could make no useful contribution to the debate as he was not permitted access to the transcript of the examination.

59. As to the finding and search of the property, the focus of the argument was not upon the fact that the respondent was required to answer questions about the matter but rather upon the inference for which Mr Longville had contended that, contrary to the direction under s 25A(9) of the ACC Act, his evidence had been made available to the investigating police. Mr Longville mounted that argument by a careful examination of the evidence in the prosecution brief, including the statements of the police officers who located the property, and the chronology of the investigation which that material disclosed.

60. The evidence about this matter was not satisfactory. There was no oral evidence. The allegation that the police had unauthorised access to the terms of the respondent's examination is serious, the more so if the contention was that the examination had been conducted for that collateral purpose. This should have been the subject of cross-examination of relevant witnesses. Here also, of course, the prosecutor was ill equipped to deal with the issue. That said, I agree with Mr Molomby that the trial judge, while expressing concern about this matter, does not appear to have made a finding about it.

61. In all the circumstances I am satisfied that in granting the application for a permanent stay his Honour's discretion miscarried. The matter calls for re-examination and, perhaps, further evidence. This court is not in a position to undertake that task. Ms Adams sought an order that the matter be remitted to the District Court, which I consider to be the appropriate course. Obviously, it would be desirable for the Crown to be represented by counsel and solicitor other than those who have the carriage of the prosecution and for a further variation of the direction under s 25A(9) of the ACC Act to be made for that purpose.

62. Accordingly, I would allow the appeal and remit the matter to the District Court for redetermination.

63. HAMILL J: I agree with Hidden J that the appeal should be allowed and the matter remitted to the District Court for further consideration of the respondent's application for a permanent stay of proceedings. I agree with his Honour's reasons for that conclusion.

64. However, I should record that I do not accept the appellant's submission that it was denied procedural fairness in the proceedings before Judge Williams.

65. That submission was based on the fact that its counsel did not have access to the transcript of the proceedings before the Australian Crime Commission (ACC) and on the ground that the trial Judge made a finding (that there was "unlawful collusion" between police investigating the matter and officers of the ACC) in circumstances where there was no warning to the prosecutor that such a finding might be made. I note that the suggestion in the written submissions (not prepared by the learned Crown Advocate who appeared on the hearing of the appeal) that "it was not open to the Crown to call evidence to rebut that contention" was not pressed.

66. Counsel for the appellant was on notice that the respondent relied on the transcript of the hearing before the ACC. Counsel for the respondent had sought, and received, an exemption from the non-publication orders made by the ACC. The appellant could have applied for a similar exemption and, if necessary, sought an adjournment to enable such an application to be made. That is the course that Ms Adams SC took in order to prepare for the hearing of the appeal. I accept that particular complications arose because counsel for the appellant was also briefed to appear at the trial. However, those complications do not mean that the appellant was denied the right to be heard.

67. The requirement for natural justice is a requirement that a party be given the opportunity to be heard. The appellant was afforded that opportunity. As Gleeson JA said in Jamal v Director of Public Prosecutions [2013] NSWCA 355:

"The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. However, a party's failure to make proper use of that opportunity cannot be used to support the claim of procedural unfairness: Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213 at 219 [37] per Mason P."

68. As to the second part of the appellant's natural justice submission, when the matter came on for hearing, counsel for the appellant provided extensive written submissions and a chronology. Whilst the version of the written submissions provided to the appellant was redacted in compliance with the non-publication orders made by the ACC, it was clear that counsel was inviting the primary Judge to conclude from the timing of various events that there must have been some communication or interaction between the investigating police and officers of the ACC. This was based around the following parts of the chronology:

15 December 2010 - The respondent was arrested in Quirindi and told police that he had "just come from a property at Werris Creek".

The respondent was charged with possession of drug manufacture apparatus.

17 December 2010 - The respondent was charged with manufacture and supply of a large commercial quantity of prohibited drug.

2 March 2011 - Two police officers attended on the respondent at Long Bay prison. The respondent declined to be interviewed.

At 2.28pm the ACC issued the summons requiring the respondent to attend for examination.

8 March 2011 - The respondent was examined by the ACC. He was examined extensively as to matters giving rise to the charge and about the location of the Werris Creek property.

20 March 2011- Investigating police travelled to Werris Creek and located the relevant property.

69. There are two temporal coincidences that arise from this chronology. First, the summons requiring the respondent's compulsory examination was issued by the ACC on the same day that the respondent declined to be interviewed by investigating police. Second, having failed to locate the Werris Creek property in the three months since the respondent's arrest, investigating police located that property twelve days after the respondent gave evidence of its location to the ACC.

69. In any event, as Hidden J concludes at [60], while the primary Judge expressed concern as to the chronology he did not make a clear finding on the subject.

70. The absence of a clear finding on this issue, the unsatisfactory nature of the evidence on the subject and the extreme nature of the remedy invoked are the matters that lead me to agree with Hidden J that the discretion in the primary Judge miscarried.

71. The circumstances in which a permanent stay might be granted in cases of serious criminal prosecutions are not capable of categorisation in advance. The concept of "abuse of process covers a multiple of ills": DPP v Shirvanian (1998) 44 NSWLR 129 at 134A per Mason P. However, what is clear is that a permanent stay is an exceptional remedy granted only in extreme cases: see, for example, Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23 at 76, R v CB, R v MP [2011] NSWCCA 264, R v Seller and McCarthy [2013] NSWCCA 42 and R v Regan [2002] SCC 12.

72. This Court has granted or upheld permanent stays in cases where the accused person was able to establish a circumstance or circumstances which meant that they were unable to have a fair trial. For an example in R v Littler [2001] NSWCCA 173, the Court (Hodgson JA, James and Adams JJ) granted a stay of proceedings to a 74-year-old man who had memory problems and was called upon to answer allegations of offences alleged to have occurred between 38 and 46 years earlier. It was held that directions were not capable of curing the prejudice and ensuring him a fair trial.

73. Similarly, in R v Westley [2004] NSWCCA 192 the Court ordered a permanent stay of proceedings where the accused was 77 years of age and charged with offences that occurred when he was "about 46 or 47". The evidence was not capable of establishing the precise age of the complainant and would be statute barred if she was aged between 14 and 16. It was held therefore that the prosecution was "doomed to failure".

74. In those cases the focus of the Court was not on the conduct of prosecuting authorities but on the ability of the accused person to receive a fair trial.

75. I refer to and gratefully adopt Hidden J's analysis of the cases of X7 v ACC [2013] HCA 29; 248 CLR 92, Lee v NSW Crime Commission [2013] HCA 39andLee v The Queen [2014] HCA 20. The present case was decided after the decision in X7 but before the decisions in Lee v NSW Crime Commission andLee v The Queen.

76. The language used by the primary Judge and his reference to his "view that the accusatorial process has been fundamentally flawed" suggest that his Honour was greatly influenced by the judgment in X7 and particularly the language employed by Hayne and Bell JJ at [124]. The respondent relied heavily on that passage in the arguments before this Court.

77. Given the strength of the language in paragraph [124], it is easy to see how one could conclude that a stay of proceedings would follow from an unlawful and compulsory examination of the kind involved in the present case. However, the High Court is yet to consider a case where the remedy sought in such circumstances was the permanent stay of serious criminal proceedings. Further the orders made in Lee v The Queen, seen in the light of arguments addressed to the High Court on the hearing of the appeal, suggest that a remedy short of a permanent stay may be available depending on the circumstances of the case.

78. The following arguments were made on the hearing of the appeal in Lee v The Queen (Lee v The Queen; Lee v the Queen [2014] HCATrans 69):

"KIEFEL J: What do you say the court should have done, hypothetically, if it had been - - -

MR GAME: What the court should have done was order a temporary stay until a different prosecutor was brought on the case and the case was presented in a way that was unaffected by the - - -"

And later:

"CRENNAN J: You are saying, are you not, it is such a fundamental process, defect, that you do not have any need to consider the effect on the verdict?

MR GAME: That is correct, your Honour.

BELL J: If that is so, how does a temporary stay until another prosecutor is briefed in the matter resolve the situation? This depends, I suppose, on acceptance that the prosecuting authorities can establish a satisfactory Chinese wall.

MR GAME: I think the shoe is on the other foot because the prosecution then has to establish that it can run the case untainted by this process.

KIEFEL J: But the problem here is it is now too widely disseminated for a court to be satisfied as to that.

MR GAME: That is our position.

KEANE J: But if that is your position, then if you succeed it is not about a retrial, is it? If that is your position there cannot be a retrial.

MR GAME: That is my position. I do not want to be too bold but, yes, that is our position, but we also say that if your Honours are not with us on that then you would make an order for a retrial and we would have to [sort] out in a forensic battle with our opponents as to whether or not they could put them back on trial. That forensic battle could easily be facilitated in the context of an order for a retrial in which our opponents then sought to satisfy the Court that a stay should not be ordered.

KIEFEL J: How could the court entertain an application for a stay if this Court has ordered a retrial?

MR GAME: Well, because, your Honour, the order for the retrial would not foreclose the outcome of the stay - - -

KIEFEL J: But in the circumstances in which the order for retrial has been made?

MR GAME: It would depend on the circumstances in which the order for a retrial had been made, but the lease [sic] of a stay would not have been determined in terms by the order for a retrial.

FRENCH CJ: Issues relevant to the stay might include practical questions about choice of prosecutor and so forth and I suppose that could be raised after the point of arraignment, after the point at which the trial had commenced.

MR GAME: Yes. I do say that an order for acquittal would be appropriate but I do not want to throw the baby out - another metaphor, but I do not want to put in a lot of claims that are too large."

80. The High Court did not, in terms, address these arguments in its judgment. However, the Court ordered a new trial. That was in circumstances where there had clearly been a dissemination of the material to the prosecuting authority.

81. The final chapter of what Hidden J has described as the Lees' "lingering and somewhat complex encounter with the criminal justice system" is yet to be written. However, the orders made by the High Court in Lee v The Queen contemplate that a trial that is relevantly "fair" may be possible even in circumstances where there has been both an unlawful examination and a dissemination of the material.

82. Insofar as the primary Judge appeared to act on a contrary assumption, his Honour's discretion miscarried.

83. For these reasons, as well as those given by Hidden J, I agree that the appeal must be allowed and the case remitted to the District Court.

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Decision last updated: 26 May 2017