Seller and The Queen

[2013] HCATrans 204

[2013] HCATrans 204

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S62 of 2013

B e t w e e n -

ROSS EDWARD SELLER

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney   No S63 of 2013

B e t w e e n -

PATRICK DAVID McCARTHY

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HAYNE J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 SEPTEMBER 2013, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MS R.L. SEIDEN:   If it please the Court, I appear with my learned friend, MS T.J. DAVY, for the applicant in S62.  (instructed by Pearson Tax Lawyers)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR M.A. ROBINSON, SC and MR P.K. BRUCKNER, for the applicant in McCarthy v The Queen.  (instructed by Hardinlaw Solicitors)

MR D.J. FAGAN, SC:   May it please the Court, I appear with my learned friend, MR P.R. McGUIRE, for the respondent in both matters.  (instructed by Commonwealth Director of Public Prosecutions)

HAYNE J:   Thank you.  Have the applicant’s counsel agreed on some division of time or other arrangement about how the application should run?

MR JACKSON:   Your Honour, Ms Seiden will go first.  I will be shorter in consequence I expect.  I do not know if I can put it more broadly than that.

HAYNE J:   Yes.  Ms Seiden.

MS SEIDEN:   Thank you, your Honours.  Your Honours, the factual context is not in dispute.  The applicant was compulsorily examined by the Commission in relation to matters relevant to proof of the charges and his defences.  Contrary to the Commission Act, the transcripts and briefing papers were disseminated to the prosecution.  The transcripts were read by officers of the prosecution because the material was relevant to their functions.  The Court of Criminal Appeal acknowledged that these facts could lead to the prejudice of a fair trial of the accused, but held that there was no evidence of actual prejudice to the fair trial of the accused.

This is not merely a case where the Court of Criminal Appeal agreed with the test for stay but held, as a matter of judgment, that the facts as found did not satisfy the test.  The applicant contends that the Court of Criminal Appeal erred in principle.  The two principal errors, your Honours, are first, that the Court of Criminal Appeal failed to recognise that inroads into the accusatorial process not permitted by the Commission Act constituted actual and not potential prejudice.  Second, their Honours did not consider whether irrespective ‑ ‑ ‑

HAYNE J:   Sorry, can I just understand that proposition?  Is that an attack on the finding that there was no evidence of prejudice?

MS SEIDEN:   It is, your Honour, in the sense that there was evidence in the applicant’s submission to demonstrate actual prejudice and that by making the finding of no evidence their Honours failed to take relevant considerations into account and, with respect, misunderstood something as being potential prejudice when, in the applicant’s contention, it was actual prejudice.  It affected the choices that the applicant has to make and led to advantages of the prosecution.

GAGELER J:   Well, there are some findings of fact in the Court of Appeal’s judgment at page 135 of the application book, paragraphs 113 to 115.  Do you quibble with the factual analysis?

MS SEIDEN:   In the sense that the conclusion is one of potential prejudice as opposed to actual prejudice, we do.  We do not cavil with the facts as laid out and I think there is no dispute at all between the parties as to the underlying building blocks, your Honour, but in terms of whether this amounted to actual as opposed to potential prejudice, that is really at the heart of the applicant’s special leave point, your Honour.  If I could perhaps demonstrate that by taking your Honours to some passages in the first instance decision.  At application book 61, at paragraph 203, Justice Garling noted at paragraph (g) that:

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

Now, the Court of Criminal Appeal held that mere disclosure of defences was not enough to constitute prejudice and that that was really the error that Justice Garling had fallen into and it submitted that there was no error.  That particular paragraph needs to be read with a few other paragraphs.  If I could draw your Honours’ attentions to application book 69 at paragraph 243, his Honour Justice Garling is here considering the expressions “derivative” and “indirect use” and notes that:

In the context of this case, the term would extend to include the use of the compulsorily obtained evidence as a basis for the development of strategies for the presentation of a prosecution case, such as the order in which witnesses will be called, and also the development of an appropriate plan for the cross‑examination of an accused if they give evidence.

His Honour in that paragraph lists some other examples of prejudice or unfair advantage as a result of the prosecution having the accused’s defences.

HAYNE J:   Let it be assumed for the purpose of debate that those are areas of possible prejudice, why are they not met, and met wholly, by what is said in paragraphs 113 to 115?

MS SEIDEN:   Well, your Honours, we would put it this way.  In this case there are findings as to unlawful dissemination.  The material was relevant to the charges and defences.  The material was read by officers of the prosecution because it was relevant to their function.  The material was used to some unknown extent.  The material may assist the Crown in its prosecution by putting the Crown onto a train of inquiry or enable it to adjust its case to meet the anticipated defences and the accused will need to take the knowledge that the defences are with the prosecution into account in the preparation of his own defence.

The special leave question therefore, your Honours, is, is this enough to demonstrate actual prejudice and the applicant contends, in the circumstances it must be for the reason that actual use and what the prosecution has actually done with the defences and the material relevant to the charges is exclusively within the knowledge of the prosecution.

When the applicant, as in this case, has established that the respondent has used the material and that the knowledge of that use is within the respondent’s purview then the applicant’s case may be established by the failure of the respondent to produce evidence to rebut that there has been use or unfair use, so it is the combination, to answer your Honour’s question, of the findings which are undisputed that the material was at least read by officers and it was relevant to their function, combined with the either failure because the prosecution could not or would not particularise the use, therefore there has been some use to an unknown and, in the applicant’s contention, unknowable extent and ‑ ‑ ‑

BELL J:   Ms Seiden, in terms of the preparation of the matter for trial and the conduct of the trial on the part of the prosecution, the facts at paragraph 114 are that the case officer who has held that position since 2008 has not been told anything of the content of the examinations and that counsel retained by the Director has not had access to the transcripts or of any information concerning their contents.  Against those findings, what are we to make of a submission that someone in the DPP, someone not responsible, so it would seem, for the preparation of the prosecution case and its presentation, has read the transcripts?

MS SEIDEN:   We have two answers to that, with respect, your Honour.  The first is that persons higher up the chain have read this material, and that is in Justice Garling’s decision at 125, which is repeated in the Court of Criminal Appeal at paragraph 30.  But perhaps a more comprehensive answer, your Honour, is that the charges have been developed with this in mind, and the timely reminder in X7 that the accusatorial process begins pre‑charge, we have a situation here - and if I could take your Honours to the applicant’s joint list of materials, there is a copy of the court attendance notice at page 369.  It is dated 22 September 2009 and the prosecutor is Elizabeth Simpkin, an officer of the Crime Commission.  At page 370 your Honours will see her signature.

So the charges have been developed, and there were some findings that there was some back and forth between the prosecution and the Crime Commission in relation to the appropriate charges and there was some findings that the prosecution, including Mr Corkery, had regard to the brief of evidence, not the transcripts, but the brief of evidence in relation to recommending these charges.  The brief of evidence contained briefing papers from the Crime Commission and Justice Garling held that that did contain some of the content of the compulsory examinations, but in any event, your Honours, the court attendance notice, which actually formulated the charges, was signed by a Crime Commission officer after the applicant had been compulsorily examined.

Now, a question might arise as to whether, on a construction of the Commission Act, a person can be compulsorily examined and have that material as – and we have findings that that compulsory examination contained material relevant to the charges and the defences and the question is, can somebody in that situation have their compulsory examination used to actually craft the charges that are then laid against that person, and that is a question of construction of the Commission Act informed by the Constitution that has not been the subject of decision.

HAYNE J:   Well, it has not been the subject yet of argument, has it?

MS SEIDEN:   Indeed.  It is submitted that the safeguards in the Commission Act, particularly in 25A(9), suggest against any implication that the Commission could compulsorily examine someone, use that information to then craft the charges.  It, with respect, infects the accusatorial process at the very earliest stage and it is also submitted that nothing can now be done by the court to redress this.  It is not a simple case that they could put another team on to it, your Honours.

BELL J:   There would be no point putting another team on to it, having regard to the factual findings that the present team has not been contaminated to any degree.

MS SEIDEN:   Well, subject to the applicant’s contention that persons up the chain have certainly had regard to this and then, in any event, your Honours, the laying of the charges, it is submitted it does not matter what team is on it, whether the current team is infected or not, the charges have been put together with the compulsory examination, your Honours.

GAGELER J:   I may not be understanding your submission, but are you now putting that the laying of the charges was prohibited by the Australian Crime Commission Act?

MS SEIDEN:   It is submitted that the laying of the charges is part of the accusatorial process and the accused is entitled to have those charges laid without giving any assistance to the prosecution in laying those charges.  That has not occurred and it is submitted that the Commission Act does not allow that to occur.  That is the submission, your Honour, that the Commission Act does not abrogate that aspect of the accusatorial process.  Yes, the accused is compelled to give evidence.  He is compelled to answer questions but that does not, with respect, mandate a conclusion that those answers can be used to charge him, and that 25A(9) protects against that.

GAGELER J:   I just do not see that in your draft notice of appeal.

MS SEIDEN:   Well, your Honours, the draft notice of appeal relates primarily to the error that the applicants contend that the prejudice is a prejudice that has actually arisen and the example of the charges is an example of the prejudice that has already arisen rather than something that might arise.  It also goes to the very heart of the integrity of the justice process claim that when one stands back and looks at this from an integrity of justice perspective, whether the charges have been laid with the assistance of the accused, it goes very squarely into that point, your Honour.

The other error that, with respect, the Court of Criminal Appeal failed to consider was whether, irrespective of prejudice to the accused, the circumstances of this case would cause a right‑minded person to think that things had seriously gone awry and that the integrity of justice does not require a finding that there be irreparable prejudice to the accused and that is a matter that really received no consideration at all by the Court of Criminal Appeal.  It also goes to the charge point, your Honour.  So it is implicit in the nature of the prejudice that the applicant points to and that it infects the judicial process, your Honour.  I think that is as best an answer I can give to your Honour on that point.

The question for the accused is really to draw a line in the sand of the accusatorial process taking into account the inroads that the Commission Act allows and it is submitted that the only inroad is that he is entitled to be examined and he must answer questions but, in particular, he is entitled to all the protections after that, including that the material be quarantined even perhaps within the Crime Commission Act because there is a power to direct who is able to attend the examination.  It is that, in particular, that we point to to say that the charges ought not have been crafted with his compulsory examination in mind. 

The further example of the prejudice, your Honours, has been put by Justice Garling in those paragraphs that I took your Honours to at 244 - something very similar was said by Justice Robson, if I could direct your Honours’ attentions to the supplementary materials at page 324 at paragraph 58, the sixth line from the bottom, and this is relation to defending civil proceedings:

Compelling the defendant to defend civil proceedings, particularly those which impose a penalty, may assist the Crown in its prosecution by putting the Crown onto a train of inquiry or enable it to adjust its case to meet the anticipated defence in advance.

It is that knowledge coupled to the fact that the prosecution has not rebutted any use that the applicants point to to demonstrate actual prejudice and obviously the charges.  These things, it is submitted, cannot be undone, the genie is out of the bottle, and there are several other cases which are in a similar situation so this case has broad ramifications.  If I could direct your Honours’ attention ‑ ‑ ‑

HAYNE J:   Well, that suggests, does it not, that you are asserting a general rule that any breach of the confinement orders requires stay?

MS SEIDEN:   Your Honours, with respect, we do not go that far.

HAYNE J:   Then it becomes factually specific.  If it is factually specific we encounter these findings.  Is there more to it than that, Ms Seiden?  Is there any additional point you are looking to make?

MS SEIDEN:   It is the error of principle, your Honours.  We point to the fact that, with respect, the Court of Criminal Appeal misapprehended what actually constitutes prejudice in this case, misapprehended that an inroad into the accusatorial process that is not permitted by the Commission Act itself constitutes prejudice and is not potential prejudice and we particularise that in this case by pointing to the charges and pointing to the use of the material that the prosecution has and the lack of rebuttal evidence from the prosecution.

GAGELER J:   As I understand it, you point to two factors that you say amount to actual prejudice.  One is the use of the material in the formulation of the charges, a factual proposition, and the other is simply there having been a breach of the Crime Commission Act.

MS SEIDEN:   Well, we put it a little further than that, your Honours, because the breach of the Crime Commission Act would have occurred by the mere dissemination of the material.  We say it has gone further than that.  Briefing papers have been prepared that the prosecution have seen.  Mr Corkery has not read the transcripts, but there is no evidence that he has not read the briefing papers from the Crime Commission Act and we also point to the fact that there has been a failure to consider the integrity of justice question.  That, it is submitted, arises particularly where the extent of the use is unknowable, it is not simply unknown, and we say that that trigger that integrity of justice point, your Honour.

HAYNE J:   Yes.  Thank you, Ms Seiden.

MS SEIDEN:   Thank you, your Honours.

HAYNE J:   Mr Jackson. 

MR JACKSON:   Your Honours, may I just say something first about the Act and then come directly to the particular case?  Your Honours, the provisions of section 25A(9) of the Crime Commission Act are designed to deal with the case of derivative use.  I say that because, your Honours, section 30(5)(a) makes it clear that when an objection has been taken, as here, the answers of a person being examined are not themselves admissible against the examiner.  Your Honours will see that provision at page 57 of the joint materials.

Your Honours, but the Act recognised, as the Court has done on a number of occasions, that direct use of an examinee’s evidence is not the only way in which a fair trial of criminal charges may be compromised or in which the course of administration of justice may be adversely affected.  I emphasise, if I may, with respect, the second part of that proposition relating to the administration of justice. 

Now, your Honours, I said that the Court had referred to it on a number of occasions.  One can see that in, for example, X7 at paragraph [53] and paragraph [54] – I do not think I need to take your Honours to that – they are observations of the Chief Justice and Justice Crennan in relation to the general proposition.  Section 25A(9) endeavours to cater for that by the terms in which it requires that directions must be given if it would prejudice the fair trial of a person charged with an offence. 

Now, in this case, if I could turn to it for a moment, in the case of this applicant he was examined over seven days in three tranches, as it were.  The direction that was given appears at the conclusion of the examination at page 15 in paragraphs 43 to 44 and your Honours will note what is said, in particular by the judge at first instance at paragraph 44.

Now, your Honours, in the majority reasons in X7 at paragraph [99] and in several other paragraphs, it was made clear that the – if I could use the words from paragraph [99], which your Honours will see at page 158 of the additional materials:

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.

To the same effect, your Honours, will see paragraphs [101], [104] and [105].  Now, your Honours, this is a case, in our submission, where there had been a breach, indeed, a rather flagrant breach of the provisions of section 25A(9), the provision designed to protect the right to silence, as discussed in those passages. 

The material that was provided to the DPP, in contravention of the direction, was examined rather closely by the primary judge commencing at page 18, and, your Honours, I am going to refer to this because what I want to do is to submit that in relation to the observations of the Court of Criminal Appeal (a) there was an error in relation to what they said about the primary judge’s view firstly, and secondly, because it is clear, we would submit, that the judge did not take quite so benign a view of the conduct involved as that which one would think is involved in paragraphs 113 to 115 of what was said by the Court of Criminal Appeal.  Your Honours, may I go, in that regard, to paragraph 56 at page 18?

GAGELER J:   Mr Jackson, can I just ask, what ground of appeal would this submission be directed to?

MR JACKSON:   I think paragraph 1, your Honour ‑ ‑ ‑

GAGELER J:   Well, I mean, are you saying that the Court of Appeal in some way failed properly to perform the appellate function by misunderstanding the analysis that had been undertaken by the trial judge?

MR JACKSON:   Yes, I am, your Honour, yes.  Well, your Honour, I think it comes within ground 1, I suppose if at all, but ground 1 is, I have to say, very broadly expressed, and if necessary I would ‑ ‑ ‑

GAGELER J:   I just need to understand the nature of the error on the part of the Court of Appeal that you are asserting.

MR JACKSON:   Yes, your Honour.  May I can come to that a little more precisely in a moment or perhaps I can deal with it directly now.  If one goes to paragraph 112, which is at page 134, which is the commencement of the part where they are speaking of the judge’s exercise of a discretion and your Honours will see, about line 42 or perhaps two or three lines before that, it is said:

The primary judge . . . did not consider whether such prejudice had in fact occurred.  It is apparent from the conclusion in par [203] of his judgment that he took the view that a stay should be granted whenever there was a communication of a person’s defence –

et cetera and you will see the reference to paragraph 203(g).  Now, your Honours, if one goes to paragraph 203(g) of the primary judge’s reasons, which your Honours will see at – the paragraph commences page 60 and goes onto page 61, you will see that 203(g) is one where he says:

the right to a fair trial will be compromised if –

et cetera.  But, your Honour, what is perfectly apparent is that if one reads on you will see under the heading “Relief – Legal Principles” that it is clear in the paragraphs that follow it and perhaps up to paragraph 213, that the judge recognises perfectly well that he is engaged in a question of the exercise of the discretion and that it just does not follow that if there has been a compromise of the right to a fair trial, as he refers to in 203(g), that it follows that there must be a stay. 

So that one does have a situation where the judge is making it absolutely clear, with respect, that he has a discretion and is considering whether to exercise it assuming that the circumstances referred to in 203(g) have arisen and that is why, we would submit with respect, if one goes back to page 134 and looks at what is said about line 42 it is just not correct.

Now, that is the starting point of the discussion by the Court of Criminal Appeal on the discretion and, your Honours, if one goes then to paragraphs 113 to 115, what I was going to do was to go back and I do so very briefly if I may to the passages where the primary judge dealt with the findings that he made and they go beyond what is said by the Court of Appeal in those passages.  Your Honours, may I go to page 18, paragraph 56.  You will see that the primary judge did read the whole of the transcripts.  The Court of Criminal Appeal did not do so.  He said:

it is appropriate that I note the specific contents of them insofar as the contents relate directly to the subject matter of the charges, or matters that may be relevant to the defence of Mr McCarthy.

He endeavoured to give a summary in the next paragraph and then your Honours will see in paragraph 58 the headings that he derived which appear to go right through the matter, and in paragraph 59 you will see that he said:

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

Then in paragraph 60 it said it:

covered his view, and understanding, of the nature and structure of the arrangements –

Your Honours will see the remainder of that paragraph, and then in paragraph 61 he observed that:

These were matters about which Mr McCarthy had a right to silence and which engaged his privilege . . . these are matters which may be relevant to any defence which he advances at trial.

Now, your Honours, pausing at that point, that was the basic thing he said about the actual use of the transcripts, or the content of the transcripts at that point.  From there, whilst he accepted that the paper form of the transcripts had not been read by any officers of the DPP, he was not of the same view in relation to the electronic version and your Honours will see that dealt with at page 34, paragraphs 115 going through to 125.  You will note particularly the start of paragraph 119 and paragraph 120. 

Your Honours, one comes then to the conclusions that he drew at paragraph 125 and those inferences were that, in paragraph 125(b), that “each of the officers” at particular levels, it is four or five people, those persons were authorised to access the electronic file.  Their functions were:

supervisory and oversight roles . . . including recommending or approving the charges –

The same in relation to paragraph 125(c).  Your Honours, if one looks at 125(d) you will see that the judge formed the view of the relevance of what had been said by the two applicants and could I just say in relation to what had been said, in effect, that was all the material that the judge had referred to earlier that were actual matters necessary to sustain proof, paragraph 59; the understanding of the arrangements, paragraph 60; and matters potentially relevant to defence, paragraph 61. 

So, your Honours, what we would say then, if I could go back to paragraphs 113 to 115 of the Court of Criminal Appeal, is that, first, they start on an incorrect basis, to which I have referred; secondly, the primary judge’s views went rather beyond what was said in paragraph 113.  You will see, your Honours, there was the evidence referred to in paragraph 115 of Mr Tang.  Mr Tang was there throughout the interviews.  He was first seconded to the Crime Commission, so assuming one treats him as an officer of that - he was an officer of the ATO also at later points - but his evidence, which inevitably must have been assisted, one would think, and derived in any reasonable way from what he heard or saw at the interview, is something which is to be used now as part of the prosecution case.

BELL J:   Subject to anything the trial judge might rule in relation to any application that might be made.

MR JACKSON:   Well, of course, your Honour.  I do not mean that in any – I say, of course.

HAYNE J:   The last two sentences of 115 are surely not unimportant.

MR JACKSON:   Well, your Honour, I accept that Mr Tang’s evidence is evidence that might be rejected and one suspects may well be in the light of what has been said by the Court of Criminal Appeal and that, your Honours, is why I have not dwelt a great deal on Mr Tang’s evidence.  But one does have a – one is left with a situation where even in the Court of Criminal Appeal, if one goes to paragraph 117, you will see that one sees the court

saying it would not be appropriate to make any further use, and if they did then the removal of the stay would have to be subject to an undertaking.  Your Honours, that is, with respect, a not impossible but rather curious indication of the use of the judicial power, we would submit.

Now, your Honours, the last point I wanted to make in relation to the approach taken by the Court of Criminal Appeal was this.  One sees the Court of Criminal Appeal dealing with the case as one simply involving the question whether there would be a fair trial.  But of course, there was a rather larger question, or perhaps not larger, but a different question, not adverted to by the Court of Criminal Appeal and that was whether the administration of justice, which would be adversely affected by the court having to deal with a case in which there had been such a considerable breach of the terms of section 25A(9).  Your Honours, those are our submissions.

HAYNE J:   Yes, Mr Fagan.

MR FAGAN:   Your Honours, at first instance the learned trial judge did go beyond just ascertaining that there had been a breach of orders and that there had been an amendment of the non‑publication order which his Honour thought should not be made, should not have occurred but the learned trial judge did not go on to consider, although he did examine who might have seen the transcripts and the like in the Commonwealth DPP’s office, he did not go on to consider the application of the Jago principles and that is apparent at page 73 of the application book, 255 to 257. 

His Honour just proceeded on the basis that because information compulsorily obtained relevant to the defence of the two men had been made available their right to a fair trial had been compromised rather than ensured.  Then he concluded he had to determine whether that meant there had been an abuse of process or something that would bring the court’s processes into disrepute.  At 257 he was satisfied that there was but his Honour did not make any analysis of whether as trial judge he could mould orders which would ensure that there would not be any actual – any prejudice, in fact, to the fair running of the trial. 

HAYNE J:   What are we to make of the matters to which Mr Jackson pointed at paragraph 125, page 37 in the primary judge’s findings?  How do those matters relate, if at all, to what is said in 112 to 115 of the Court of Criminal Appeal? 

MR FAGAN:   All that his Honour has done there at paragraph 125 is infer that it is - really (f) is the most important sub‑paragraph on page 37.  He has inferred that it is likely that one or more of the senior officers would have read the transcripts.  But the next stage is for his Honour to say is there now

irremediable prejudice to the fair running of a trial.  Is the fact that senior officers may have had this, although the prosecution counsel had not seen it, their instructing officer had not seen the transcripts, is there a situation in which I cannot conduct the trial fairly, whatever orders I may make.  That simply was not addressed by his Honour, as paragraphs 255 to 257 show. 

Certainly his Honour did make these inquiries as to who may have seen the documents and he gave some consideration to whether Mr Tang, in a separate category, may have gained some advantage from knowing what was in the transcript but he did not take the next step of applying the Jago principles.  Although he recited them, he did not go the next step of determining is this going to give an advantage to the prosecution which I just cannot cure? 

One thing to consider would have been to say well, I am satisfied Mr Tang gained some advantage in making his financial analysis from reading the transcripts.  He should not have read them.  But Mr Tang’s analysis was given to his Honour.  It was three volumes of transactional documents and an analysis of what they meant with respect to the fund flows.  It would have been open to his Honour to say that this can all be cured by requiring that if the prosecution wants to prove these fund flows it must do so through a financial analyst who had not read the transcripts.  His Honour never considered that sort of thing at all.  The Court of Criminal Appeal’s conclusions at page 134 were perfectly correct, with respect.

HAYNE J:   I think we need not trouble you further, Mr Fagan.

MR FAGAN:   May it please, your Honour.

HAYNE J:   Ms Seiden or Mr Jackson, do you ‑ ‑ ‑

MR JACKSON:   Your Honour, may I just say one final thing in relation to what has been said by our learned friend?

HAYNE J:   Of course.

MR JACKSON:   If your Honours go to page 63, what your Honours will see in paragraphs 211 and 212 is that the primary judge was discussing the fact that, as you will see in paragraph 212:

a stay can be granted in a case even though a trial may be fair.

He went on to deal with that.  Then, your Honours, paragraph 219 on page 65, the second line:

In the first category of cases –

He is speaking then of fair trial -

if notwithstanding proper and appropriate directions of a trial Judge, an accused cannot get a fair trial, then relief by way of a permanent stay may be appropriate.

So the judge did understand it but what your Honours will appreciate is that there are two bases upon which one might obtain a stay.  The second was the one to which he was referring in paragraph 212 and that really was not dealt with at all by the Court of Criminal Appeal.

HAYNE J:   Mr Jackson.  Ms Seiden.

MS SEIDEN:   Thank you, your Honours.  The applicants submit that the error of the Court of Criminal Appeal was in failing to recognise that the charges had been developed on the basis of the compulsory examination and that by failing to do so they failed to take into account a relevant consideration, the Peko‑Wallsend since.  The communication of the defences was not merely mere communication.  The timing of the deployment of the defences was not at the applicant’s choosing and the disclosure will need to be taken into account by the accused in preparing for a trial.  These are all things that have affected the way the accused will run the case.  These are matters that the applicant contends are matters of principle.

The Court of Criminal Appeal accepted the material had been disseminated, that it was relevant to the functions and that, therefore, inferences were open.  If I could take your Honours to application book 121 where their Honours, at paragraph 74, accept that the material was:

capable of justifying an inference that officers of the CDPP read material which the ACC indicated was relevant to their task.  The primary judge was entitled, in [those] circumstances, to more comfortably draw this inference where knowledge of material to rebut that inference was only in the possession of the ACC or the CDPP –

It is submitted that that constitutes together actual prejudice and that the Court of Criminal Appeal, in holding that there was no evidence, failed to take that into account.  In relation to the integrity point, at application book 65, there was a quote from Lord Dyson in Warren’s Case which best articulates or encapsulates the applicant’s point that the second category in which a stay is warranted is:

where the court has the power to stay proceedings as an abuse of process –

It is at paragraph 218 and:

It is unhelpful and confusing to say that this category is founded on the imperative of avoiding unfairness to the accused.  It is unhelpful because it focuses attention on the accused rather than on whether the court’s sense of justice and propriety is offended or public confidence in the criminal justice system would be undermined by the trial.  It is confusing because fairness to the accused is the focus of the first category of case.  The two categories are distinct and should be considered separately.

It is submitted that that separate consideration simply did not occur.  Thank you, your Honours.

HAYNE J:   Thank you, Ms Seiden.

The Court of Criminal Appeal concluded in this matter that there was no evidence that the trial would suffer from a fundamental defect as a result of the wrongful delivery of transcripts of the examination of the applicants before the Australian Crime Commission.  The applicants would enjoy insufficient prospects of disturbing this factual conclusion to warrant a grant of special leave to appeal.  No wider question of general principle would conveniently fall for consideration if special leave to appeal were to be granted.  Special leave is refused in each application.

AT 10.17 AM THE MATTER WAS CONCLUDED