Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors

[2018] HCATrans 75

[2018] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M168 of 2017

B e t w e e n -

TONY STRICKLAND (A PSEUDONYM)

Appellant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

Second Respondent

DONALD GALLOWAY (A PSEUDONYM)

Third Respondent

EDMUND HODGES (A PSEUDONYM)

Fourth Respondent

RICK TUCKER (A PSEUDONYM)

Fifth Respondent

Office of the Registry
  Melbourne  No M174 of 2017

B e t w e e n -

DONALD GALLOWAY (A PSEUDONYM)

Appellant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

Second Respondent

EDMUND HODGES (A PSEUDONYM)

Third Respondent

TONY STRICKLAND (A PSEUDONYM)

Fourth Respondent

RICK TUCKER (A PSEUDONYM)

Fifth Respondent

Office of the Registry
  Melbourne  No M175 of 2017

B e t w e e n -

EDMUND HODGES (A PSEUDONYM)

Appellant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

Second Respondent

DONALD GALLOWAY (A PSEUDONYM)

Third Respondent

TONY STRICKLAND (A PSEUDONYM)

Fourth Respondent

RICK TUCKER (A PSEUDONYM)

Fifth Respondent

Office of the Registry
  Melbourne  No M176 of 2017

B e t w e e n -

RICK TUCKER (A PSEUDONYM)

Appellant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

AUSTRALIAN CRIMINAL INTELLIGENCE COMMISSION

Second Respondent

DONALD GALLOWAY (A PSEUDONYM)

Third Respondent

TONY STRICKLAND (A PSEUDONYM)

Fourth Respondent

EDMUND HODGES (A PSEUDONYM)

Fifth Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 MAY 2018, AT 10.16 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC:   If it please the Court, in M175/2017, for the pseudonym Edmund Hodges, I appear with my learned friends, MR G.H. LIVERMORE and MS C.E. CURRIE, for the appellant.  (instructed by Holding Redlich)

MR P.F. TEHAN, QC:   If the Court pleases, in the proceedings M176/2017, for the pseudonym Rick Tucker, I appear with my learned friend, MR C.T. CARR, for the appellant.  (instructed by Slades & Parsons Solicitors)

MR M.P. CAHILL, SC:   If the Court pleases, in matter M174/2017, for the pseudonym Donald Galloway, I appear with my learned friend, MR M.D. STANTON, for the appellant.  (instructed by Hicks Oakley Chessell Williams)

MR C.G. MANDY:   If the Court pleases, in proceeding number M168/2017, for the pseudonym Tony Strickland, I appear for the appellant.  (instructed by Jimmy Lardner Lawyers)

MS W.J. ABRAHAM, QC:   May it please the Court, in respect of each matter, I appear with my learned friend, MR K.T. ARMSTRONG, for the first respondent in all four matters.  (instructed by the Director of Public Prosecutions (Cth))

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with my learned friends, MS S.J. MAHARAJ, QC and MR G.A. HILL, for the second respondent in all four matters.  (instructed by the Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  The first way in which we put the case is that the Court of Appeal erred in setting aside what was ultimately a discretionary decision by her Honour at first instance to grant a permanent stay.  But before getting to the truly discretionary element of that matter, there is of course the question of the evaluative assessment involved in whether or not conditions had been shown which provided power to order a stay, notoriously and, I think, uncontroversially in this case, a matter said to be confined to exceptional cases.

However, the Court of Appeal erred in this respect because there was no fault at all, no mistake or error, requiring appellate intervention in the way in which her Honour at first instance directed herself on that first threshold question.  Could I, by way of illustration, take your Honours in volume 7 of the appeal book to page 2195 in her Honour’s reasons, picking up at the foot of that page paragraph 48.  I will not draw to attention the particular case law cited by her Honour; we repeat that we think this is not controversial as to the various formulations, but we wish to emphasise that formulation which includes the notion of:

a fundamental defect which goes to the root of a trial, of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences –

Then, with great respect, her Honour correctly said that in such a case:

the discretion to stay is enlivened –

Her Honour then goes on, with respect, correctly and in a way that is not criticised, we think, by their Honours in the Court of Appeal, to point out the various safeguards that the jurisprudence contains against too ready a resort to this extraordinary power.  At the outset, our proposition 1, this is not a case of misdirection concerning the existence and the nature and the circumstances in which there can be exercised this extraordinary power.

Your Honours know, of course, from the case law that has been rehearsed in detail in written submissions and is also discussed in both sets of reasons in the courts below, that there has been resort had by all parties to cases other than cases involving a permanent stay.  And we should note that at the outset, that is the reason why we fasten on one of the formulations for a case enlivening the discretion to stay, namely, the “fundamental defect” et cetera. 

To take perhaps the most convenient example of the case law of that kind, and if your Honours will allow me to call it Lee (No 2), the decision reported at 253 CLR 455, is of course an appeal under the Criminal Appeal Act (NSW). An appeal allowed on the basis of a miscarriage, significantly for our purposes, a miscarriage of a kind that the proviso could not reach in the sense that it was, to use a colloquialism, proviso proof because it was in the nature of a “fundamental defect”.

GAGELER J:   But a retrial was ordered.

MR WALKER:   Exactly, and your Honour anticipates my very next point.  There was not before this Court in Lee (No 2) the question obviously of a stay.  In particular, there was not before this Court, concerning a prospective trial, a trial, which is the subject matter of the consideration of the possibility of a stay, of any way in which that which had caused a miscarriage in the accomplished trial in Lee (No 2) could be avoided or remedied adequately in a retrial.  That was simply not before this Court.

That is why Lee (No 2) is not an authority we can brandish as if it is the end of the matter and in our favour.  In this case it simply is not.  It takes us only to the first threshold step, namely that what had happened in Lee (No 2), compared to which our case is a fortiori, amounts to a fundamental defect of the relevant kind.  We have to make good by argument, to which I will come in steps, the second part, namely this is not a case in which there can be steps taken to avoid the injustice that is entailed in a trial not in accordance with the requirements of law.

Finally, in relation to Justice Gageler’s question could I remind your Honours that an order for a retrial following a miscarriage determination on an appeal does not preclude a future application for a stay of those proceedings.  The retrial includes all aspects of criminal proceeding in relation to it, including the fundamental or existential question should the trial in fact be had and that of course can be by reason of matters that have their roots before the successful appeal as well as on the basis of matters that arise thereafter.

In particular, to take that as an example, if matters which have produced a miscarriage requiring the quashing of a conviction by way of appeal were not remedied in time or adequately for the ordered retrial, then that would be a paradigm case where circumstances existing before the appeal and the combination of circumstances being inaction or inadequacy of prosecutorial conduct after the appeal would combine to make out in a familiar way the case for a stay of that retrial.

I do not need to ring the changes on the rest of the case law but your Honours are very familiar with the fact that some of the decisions from which we derive authority for the nature of the criminal process in its fundamental respects upon which we rely have to do with questions of statutory power raised nakedly as such, declarations as to proper meaning of statutes appearing to permit compulsory examination, questions of constitutional import which have no bearing in our case, again to do with the nature of the fundamental character of the prosecutorial onus and matters - in particular, a statutory interpretation in light of those fundamental questions.

None of those is directly raised in our argument.  They are important obviously as descriptions of the cases from which we derive principle and we hope we have observed the appropriate caution.  We would certainly submit that her Honour at first instance observed the appropriate caution in taking from cases which were not stay cases principles to inform the existence, as we say, of the fundamental defect which is the threshold condition here.

What I then note in relation to our proposition 1 that so far as we read the Court of Appeal reasons, apart from matters in relation particularly to Lee (No 2) which I will come to in some detail, there is not, we think, any error found by their Honours in the Court of Appeal in the way in which her Honour approached that case law.

In relation to what I am going to call in shorthand the “practical injustice question”, to a degree the way in which the Court of Appeal proceeded obviated the need to confront certain controversial aspects of that part of the doctrine.  I will come to that later.

Her Honour at first instance then proceeded on the basis of, with great respect, painstaking findings of fact over a long hearing to conclude, as your Honours have seen, in the critical paragraphs commencing with paragraph 880 in her reasons at volume 7 of the appeal book 2367.

GORDON J:   Are you now moving to proposition No 2?

MR WALKER:   I am, your Honour.  This is a summary section, as it were, in her Honour’s reasons and so I will be going back to a degree.  But your Honours will recall that this is a juncture in the exposition of her reasoning where her Honour has just completed her consideration of steps by which there might be proposed a remedy or sufficient alleviation of the unjust consequence by reason of the conduct which she had found.

To remind your Honours because we can, I hope, at least in‑chief, deal with this very briefly, this was a case where there were many – indeed it turns out it is known after the appeal about twice as many as people thought - investigators who were privy to this material.  There were of course prosecutors.  There is a proposal, which the Court of Appeal ultimately says was unnecessary but salutary, to dispense with the existing prosecution team to get a new prosecution team but no proposal - on the grounds of what I might summarise as impracticability from the Crown point of view - no proposal to do anything about the investigators, many of whom might be supposed of course to be necessary witnesses.

In due course I will come to, in relation to practical injustice, some expedients which were proposed in the Court of Appeal, adversely to us, and we will be arguing in relation to a later proposition that those are matters which exacerbate rather than alleviate the position presented by the questioning in this case.

This case does present a combination of factors, that is, it wears a composite character which is not to be seen in any of the previous cases.  Now, I start with that which we have by the concurrent holdings at first instance and in the Court of Appeal in our favour, namely that the questioning itself was unlawful. 

There are two elements we would highlight in that proposition, namely that it was not questioning for the permitted purpose of an investigation of the ACC, as it was then, but rather there was no such investigation in existence and it was an examination for the unauthorised or illicit purpose of assisting an AFP investigation which most certainly was on foot. 

Secondly, your Honours appreciate, and I will come to the statute later rather than immediately, that in particular the provisions ‑ critical safeguard provisions as this Court had several times – has several times already noted, of subsection 25A(9) of the statute had not been observed.  They are matters where, in our appeal, we have the benefit of holdings in our favour on those matters.  So picking it up in her Honour’s reasoning at paragraph 880, your Honours will note her Honour’s correct observation that this case was different, particularly different from cases where stays have been refused: 

This case involves the deliberate coercive questioning of suspects, because they had exercised their rights to decline a cautioned police interview.

So, to use some of the jargon in this area, this is pre‑charge not post‑charge.  They are suspects, not the rather more shadowy but still vulnerable class called persons of interest - they were suspects and they had already exercised a right, which is a fundamentally important common law right, to remain silent in the absence of statutory compulsion to act otherwise, when asked questions by police investigators in relation to suspected criminal wrongdoing.  Then her Honour goes on:

The examination power was used for the very purpose of achieving forensic disadvantage to the ACC accused –

in question:

and advantage to the prosecution –

Now, it does not necessarily follow that that disadvantage and advantage are just two sides of the one coin but they are to an extent.  That is, the accusatorial system does involve what might be called a contest in which there is a calculus of strength and weakness respectively between parties and it can be said, mostly, that the disadvantage of one party constitutes or contributes to the correlative advantage of the other party.  It does not always logically follow as neatly as that.

There is no doubt, of course, that there were foreseen future legal proceedings in this case.  Now, that is important because of the word or the expression “may be” in subsection 25A(9) to which I will come, with which your Honours are familiar.  That in turn is important, if I can just look ahead a couple of propositions, because it is one of the most obvious ways in which one sees her Honour in sometimes expressions bordering on incredulity, considered and evaluated the conduct of the relevant officers and, in particular, the examiner, with respect to the duty in subsection 25A(9), last sentence.  A duty which was enlivened in the case of people who may be charged, not just people who have been charged, and the finding, the holding at 880, is one which was not criticised or overturned in the Court of Appeal.

In paragraph 881, there are holdings which, with the exception of what the Court of Appeal regarded as a critical epithet, namely, “reckless” was also upheld in the Court of Appeal, that is, survived challenge.  Her Honour found that she could not find that the examiner had acted in deliberate disregard of his statutory obligations and then for what she calls the reason given earlier ‑ and I will take you back to some passages in a moment ‑ she was satisfied that he had been reckless to his various obligations to an unacceptable degree.  As your Honours have seen in the reasoning in the courts below, particularly in the Court of Appeal and in the exchange of written submissions in this Court, the matters to which I will come in proposition 6, focus in particular upon that epithet “reckless”. 

It need hardly be said but for our purposes needs to be emphasised, of course, there was no statutory text being construed.  It is a word that one finds in the case law, but among other words of opprobrious meaning concerning official misconduct, when questions of abuse of process or the interests of the administration of justice are informing a discretion, in relation to an application for a stay.  An exact analogy, we would urge, is to be seen in cases like Bunning v Cross and since the Uniform Evidence Act in section 138.

We just note that at 881, the actual holdings, which are in summary form, barring the epithet “reckless”, are not departed from by the Court of Appeal.  In paragraph 882, there is, as it were, a regretful reflection by her Honour on what we would urge was displayed as a serious systemic failure.  Then in paragraph 883, all of these considerations are combined in what is described in a double‑barrelled way:

not only as a result of the forensic disadvantage considerations, but also in order to protect confidence in the administration of justice –

said her Honour, should a stay be ordered. 

Now, in order to understand her Honour’s reference in the second line of paragraph 881, it is found in various places, but I would suggest that your Honours could move back to page 2360, paragraph 846, where her Honour is – and this is not the only place it is done – describing the purpose of the examinations there from the AFP point of view.  By 849 her Honour is concluding, in a way that is not departed from in the Court of Appeal:

The entire examination process was undoubtedly driven by the AFP . . . [The examiner] did not query any of the summons requests.  His “reasons” for issuing the summonses involved no more than cutting and pasting from information provided by the AFP, via the ACC staff.

At paragraph 852, his state of mind is referred to significantly:

[He] was well aware that they were regarded as suspects, and that they had declined to participate in cautioned ROIs.

That is a very important basis in terms of state of mind for the conclusion that her Honour later records in 881.  Paragraph 853 begins a pattern of holding by her Honour, not departed from in any way by the Court of Appeal, reinforced by the Court of Appeal’s findings, concerning this conduct and, in particular, matters of relevant state of mind:

Had [he] turned his mind to the requirements of s 25A(9), it should have been abundantly clear –

No, one is moving away immediately and we do not expect seriously to hear in this Court any notion of this being difficult, problematic and subtle matters of statutory interpretation as to what the phrase may be, for example, comprehended in subsection 25A(9).  Paragraph 854 picks up that theme. 

In paragraph 855 the normative judgment is pronounced that the officer “should have adopted a careful approach”.  And, as your Honours know, from having read the reasons, that of course he did not.  In particular, the quite extraordinary, as we would urge they ought to be understood, circumstances of the presence, including in a concealed fashion, of officers from the investigation is noted in paragraph 856 as obviously requiring consideration of subsection (3) of section 25A because her Honour notes, picking up observations in this Court, otherwise it would “set at nought the protection afforded by s 25A(9)”.  So directions concerning dissemination under subsection (9) would be of no avail if persons to whom dissemination should be prevented had, in any event, sat in on the examination.

In paragraph 858, apropos those matters, again her Honour’s holding is in terms of the man, the officer, exercising powers which exist only by statutory text, not turning his mind to the relevant question to which subsection (3) is addressed.  I stress, this is not ordinary conduct of a kind to which there happens to be statutory regulation, something you can do in ordinary life but there happens to be regulation of it where, in good faith, not least because nobody can be expected always to know all the law, you might do something unlawful because you did not turn your mind to the possibility of having been regulated.

But this is conduct which is at the opposite end of the spectrum.  It is permitted only by statute.  It is unthinkable but for statute.  It is highly specific and it is official.  It derives its entire character from being cloaked in statutory authority.  That is the force of her Honour, making the repeated observation.  She had the benefit of seeing the unsatisfactory way the man had given evidence before her, that he had not turned his mind to the relevant statutory text.

The last sentence at 858 picks up the rubber stamp figure of speech used elsewhere that the man “simply signed the authority documents”.  They are very important documents because those are documents which by dint of an anterior state of affairs under 7C, to which I will be coming later, means of course that the privacy against self‑incrimination existing at common law would be abolished, abolished by the way with legislative safeguards, the most obvious of which is 25A(9).

The fact that this was not something that had exceptionally descended as a legal obligation upon this man but was rather his stock in trade is referred to by her Honour in paragraph 859, with the irony, a savage one for our client, that the very man, the very officer, had demonstrated in dealings which had produced reported case law his understanding of what is called the quarantining orders that needed to be considered. 

So in paragraph 860 you have apropos in particular the question of the presence of investigators, the extraordinary circumstances that what he knew about their presence was not passed on to the people who were surely entitled at least to be given the opportunity to protest or seek information, and again, in the middle of that paragraph 860, her Honour finds that it appears that the man:

had simply not turned his mind to the requirements of –

the provision.  I stress, it is not as if this was an incidental regulation of conduct, this was the provision which permitted any such conduct at all.

In 861, her Honour, with respect, in a somewhat restrained fashion observes “Quite remarkably” conduct concerning the disclosure of these person’s presence, though concealed, or as her Honour puts it “secretly viewing their examination” and points out, concerning subsection (7), that which is not a subtle or restrained interpretation, not something that would be productive of earnest argument and counterargument, but that which is plain to demonstration. 

That is no doubt why in paragraph 862 her Honour characterised this conduct with the critical epithet that later comes up again in 881, namely:

yet another example of his reckless indifference ‑

I do not want to complete everything I want to say about proposition 6 now, but your Honours appreciate that that is one of the passages in her Honour’s reasoning, that it appears to follow from the reasoning in the Court of Appeal was regarded as being in error. 

At this point we would simply note that that would appear, with respect, to be an unexceptionable use of ordinary English to describe the state of affairs that has already been set out in the paragraphs to which I have taken you.

EDELMAN J:   These propositions about recklessness and what the trial judge said about recklessness of the officer, as I understand your submission, they are not necessary for your case but they add to it in the sense that even if there were no way of characterising the conduct as reckless or even careless, the nature of the unlawfulness, and the fact that the objects of the unlawfulness in your submission were the very things that were achieved, is sufficient for the discretion to be enlivened and to have been exercised.

MR WALKER:   Not quite.  Almost.  We do say that we do not need to essay a case bereft of any carelessness.  We have clear holdings of carelessness and by the Court of Appeal.  In theory, what Justice Edelman has put to me may describe a state of affairs which another case where carelessness is not an appropriate finding may throw up, namely, a deliberate attempt to achieve an extraneous and illicit purpose.  That certainly is a proper description of assisting an AFP investigation where there is no ACC investigation, for example.  But that is not our case.  That step does not have to be taken by us because we do have a finding of carelessness. 

EDELMAN J:   I understand that but what I do not ‑ ‑ ‑

MR WALKER:   It is the recklessness that is not – where your Honour’s question takes me in relation to recklessness, the answer is yes, we do not need recklessness using that term in order to maintain a stay.  However, as your Honours have seen, we certainly do defend her Honour’s use of that word and her holding using that word, utterly justified by the evidence and not in our submission, vitiated by reference to a mental state as the Court of Appeal argued.  I will come back to that in relation to proposition 6. 

KIEFEL CJ:   Does your argument depend so much on the examiner’s state of mind as much as the degree of the departure from the statutory process?

MR WALKER:   Our argument is ultimately the latter.  However, there is a discretion, and your Honours appreciate that it would be very rash of us at first instance or thereafter to pass over as not assisting, or adding to, as Justice Edelman put it, our case that there can be seen a state of mind and a blameworthy form of conduct by the relevant officer with whatever epithet comes to be attached to it.

KIEFEL CJ:   How does that feed into questions of the administration of justice, though?  That is the area of operation for the discretion.  It is perceptions about the court blending its processes to something that has, on your argument, gone terribly legally wrong.

MR WALKER:   And not by some point that required this Court to decide a matter fairly open for debate but by reason of carelessness to such a degree that the word “reckless” is appropriate.  That does inform the discretion in relation to the administration of justice.

KIEFEL CJ:   How does it inform it, though, Mr Walker?

MR WALKER:   Because the court’s forgiveness should not be seen to extend to conduct undertaken deliberately without the requisite care that the nature of the powers in question required.  The requisite care is enlivened by the fact that the powers in question, if they are being lawfully exercised, do detract from the privilege which itself informs, or is informed by, the fundamental principle that the prosecution bears the onus without being able to call upon the assistance of the accused from beginning to end, subject to statutory qualification. 

That is why we say of course it is relevant to the ultimate exercise of the discretion that the case before the court shows the relevant officers responsible for the departure from a fundamental requirement of the process, having brought that about by such extreme carelessness.

GAGELER J:   So all of this goes to the fundamental defect element of the argument, does it?

MR WALKER:   No, that last answer says, given the fundamental defect, the state of mind, the recklessness, goes in particular to discretion and therefore informs the administration of justice limb, or barrel, to her Honour’s double‑barrelled approach.

GORDON J:   Do you propose to go back to the statute because to talk about fundamental defect – and I understand your argument about paragraphs 880 to 883 – but at some point it has to be tied back to what it is they did or did not do. 

MR WALKER:   Yes.

GORDON J:   In Lee (No 2) they talk about Plaintiff S157 and there being no decision at all because the statutory powers were never actually exercised, whatever label you want to put on it, whether it is “careless” or “reckless”.  Do you go that far?  What is the nature of this fundamental defect?

MR WALKER:   I am going to go to the statute.  It would be convenient to do so now in order properly to answer Justice Gordon’s question.  By “the statute” I mean 25A.  This is a case, I repeat, where in both courts below we have the holding that the questioning was unlawful.  The first is a section 24A unlawfulness.  I do not need to labour the point.  The Court of Appeal pungently summarises what her Honour had very clearly found ‑ I do not need to take you to it – namely, there was no special ACC investigation to which this examination was pertinent.  It was being conducted for the purposes of an AFP investigation.

I stress that, in 880, her Honour adds what, in our submission, is the tremendous extra element; namely, that it was for the very purpose of meeting the exigency in that investigation raised by the accused or the suspects exercising their right not to participate in a record of interview.  In section 25A, you see in subsection (3) ‑ ‑ ‑ 

GAGELER J:   Mr Walker, can I just come back to that.  If you had that additional purpose, but it was a special ACC operation investigation, would the ‑ ‑ ‑

MR WALKER:   That part of the argument would fall away.

GAGELER J:   So the additional purpose in itself goes nowhere?

MR WALKER:   Well, it is redundant in the sense that we can win without it.  It does not mean it goes nowhere.  This is ‑ ‑ ‑

GAGELER J:   Is it an improper purpose in the context of an ACC operation investigation to ‑ ‑ ‑

MR WALKER:   Yes, sorry.

GAGELER J:   I am sorry.  That is really my question.

MR WALKER:   I am so sorry.  We have a finding of improper purpose because there is a finding in terms of 24A, that there was no such ACC investigation.

GAGELER J:   So, the improper purpose simply follows in the absence of the ACC operation investigation.

MR WALKER:   Yes, it does not simply follow from that, that is, the finding is that the purpose of the examination was to assist the police because the suspects had declined to be interviewed.

GAGELER J:   Yes.

MR WALKER:   That is the ‑ ‑ ‑

GAGELER J:   My question is just this:  as a matter law, if the examiner has that purpose in conducting a special ACC operation investigation, is that a vitiating purpose?

MR WALKER:   It was not tested in this case, but my answer to it is that it is not impossible at all that a special ACC investigation is being carried on at the same time as an AFP investigation.  It may even be in the nature of things that ought to be regarded as quite plausible.

GORDON J:   Well, it is what the Act says, does it not?  In one part it talks about co‑operation and it has a number of safeguards.  So the answer to Justice Gageler’s question must be right, must it not?

MR WALKER:   Yes, but that is not this case of course.

GORDON J:   No, no.  I am trying to test the boundaries of the Act.

MR WALKER:   Yes, but our 24A holding is redundant in the sense that it could be removed and the same conclusion would follow.  But it ought not to be removed because it is part of the whole of the description and character of the official conduct which culminates in the unlawful examination to find out what we think about this suspected offending.  It starts with this is not even a 24A examination and then, demonstrating the redundancy of that but not its unimportance, we go to the next step and if it had been a 24A examination, it was not conducted as it was required to be by 25A and in particular subsection (9) because there had been no attempt to consider the matters that have to be considered under subsection (9). 

So I will just jump to subsection (9) to finish that part of the argument.  The last sentence of that subsection being a separate sentence rather underlines how straightforward it is to understand:

The examiner must give such a direction if the failure to do so might prejudice . . . the fair trial of a person who . . . may be, charged with an offence.

GAGELER J:   Is that an entirely objective question?

MR WALKER:   Yes, and you must obviously turn your mind to it in any particular case in order to follow that prescript.

GAGELER J:   But you might be right or wrong.

MR WALKER:   You might be right or wrong, absolutely.  It is not a best efforts exercise, it is not a question about paying regard to, it is an obligation and it is expressed in such terms which have to be objective and mandatory, precisely because as a matter of policy, the significant abolition of the privilege is in train.

Now, that is my answer to Justice Gordon.  That is where, in 25A, even without the 24A point, one finds that this examination was unlawful because it was conducted without the obligation basal to the intended operation of this examination power imposed by the last sentence of subsection (9).

May I note as well her Honour draws attention to these other provisions.  Subsection (3) of course is the subsection which requires consideration lest the compulsory protection under subsection (9) be set at nought, in the way her Honour explained.  Subsection (7) is the provision to which her Honour was referring in relation to the extraordinary failure for it to be observed, particularly given the evidence noted by her Honour that the examiner proceeded on the basis that if he was asked for such information he would supply it, that he would not do what subsection (7) requires.  Your Honours see that the language really does not admit of any doubt or difficulty for the officer bound by it:

the examiner must:

(a)inform the witness that the person is present –

and that is in order for an opportunity to be given of a kind which is plainly significant to the exercise of the power of the examiner in conducting the examination to control who it is who may be present.

EDELMAN J:   The meaning of “fair trial” in the last sentence of subsection (9) picks up all of the common law notions of fair trial?

MR WALKER:   Yes.  In her Honour’s reasons may I just go back then to 2364.  At paragraph 865, with respect to that very important power in subsection (9), one sees her Honour concludes in a way that cannot be faulted factually, that the man “merely rubber stamped” the police requests.

GAGELER J:   I am sorry, Mr Walker.  Given that it is an objective question, is there any identification by her Honour or in the Court of Appeal of precisely what the direction was that was required by the circumstances?

MR WALKER:   Not precisely, no.  I do not have it in my head, but there is a reference by implication to the need to prevent the material being made available to investigators and thereafter to prosecutors.

NETTLE J:   It would have been impossible given that they are there listening through the window anyway, would it not?

MR WALKER:   That is the whole point about her Honour’s comment concerning subsection (3) and subsection (7) misconduct, not all illegal but – sorry, all illegal, but not necessarily vitiating.  I think subsection (8) makes that clear – when her Honour said that all of that would set at naught what subsection (9) was plainly designed to achieve, yes, that is correct.

KIEFEL CJ:   Her Honour alludes at paragraph 859 to which you have taken us to the careful and proper steps that examiners had taken to quarantine the examination process in other cases, so that the very question here does not arise, is her Honour’s view.

MR WALKER:   Yes.  Of course, the directions that – the oddly named non‑publication directions that were made were really permission ‑ ‑ ‑

GORDON J:   Publication directions.

MR WALKER:   They were permission to disseminate to the people to whom there should not have been dissemination because of the possibility of prejudice of fair trial.  That is what her Honour was referring to in paragraph 868.  I do not think there is a precise formulation in terms of the direction that the examiner should have made, but there is I think a very clear indication that, by whatever terms it was expressed, it needed to prevent that which was permitted, namely dissemination to investigators and prosecution.

BELL J:   But in practical terms that was, as Justice Nettle observes, impossible in the circumstances involving findings that in substance the decision as to who was to be examined was made by the senior investigating officer of the AFP and that officer gave evidence that if persons had said that they were unwilling to answer questions of the AFP, he saw the function of compulsory examination as available to overcome that forensic difficulty.

MR WALKER:   That is right.

BELL J:   To talk about a curative direction under subsection (9) in ‑ ‑ ‑

MR WALKER:   It is only part of the story, yes, your Honour.

BELL J:  Yes.

MR WALKER:   On reflection, I should not be so definitive about describing the 24A argument as redundant.  It is in many ways redundant, that is, we can win without it, but what Justice Bell has raised very much goes back to the genesis of these illicit examinations.  They were not for an ACC investigation at all.  They were ‑ ‑ ‑

EDELMAN J:   There is a flip side to that as well.  If there were a genuine special ACC investigation contrary to your submission, then presumably the 25A(9) directions that you say should have been made need not be made in some, maybe all, cases other than those summonses for examinations for the relevant appellants, so there could be other witnesses, for example, as part of a special investigation for whom information could and should be disseminated.

MR WALKER:   Absolutely, just as familiarly search warrants can be executed so as to produce evidence which is in the public interest to be assembled, considered and, if necessary, tendered.  Yes.

GORDON J:   I know that you do not raise this into your reply and it may be that you deal with it as a result of matters raised by the Commonwealth, but one of the problems it seems here is the scope of the determination at the start.  The very safeguard that the Act provides of a determination by the relevant ACC, both that there will be an investigation and then a special investigation in a narrow form feeds into all of these matters.

MR WALKER:   Yes.  It occurs to me, your Honours, that because I am going to be very brief on it, that the proper way to answer what Justice Gordon has raised with me is to complete what I want to say out of order in relation to proposition 7.  That requires going to section 7C of the Act in subsections (2) and (3) with respect to, respectively, an intelligence operation and an investigation they attract the statutory description of special by a prior consideration and decision about an aspect of them, a quality of them.  And paraphrased it is whether methods existing but for the special powers or ordinary methods are likely to be effective. 

That is picked up then in subsection (4) which applies to the determinations ‑ subsection (3) is ours ‑ that a relevant determination has to:

describe the general nature of the circumstances or allegations ‑

I note that word because I am going to take you to the original determination for our case.  And then in (b), there has to be a statement:

that the relevant crime is, or . . . crimes are or include, an offence or offences ‑

in the categories then described, and we need to point out it is general because it says it:

need not specify the particular offence or offences –

and it has to:

set out the purpose of the . . . investigation.

So the combination of subsections (3) and (4) is that a determination has to have the qualities that paragraphs (a), (b) and (c) of subsection (4) stipulate and must have been preceded by a consideration and determination as required by subsection (3) in order to be a determination at law.

Now, could I ask your Honours then to go to volume 8, 2467.  Perhaps I should remind your Honours, proposition 7 is in our appeal because we lost this point.  This is part of our appeal.  I am sorry for the less than perfect reproduction, but I do not think it embarrasses in any way the argument I want to put.

You will see that the expression “financial crimes” is defined in clause 3 in ways that drive one to the schedule to which I am about to come.  In clause 6, there is narration or recital of the board having considered the subsection (3) matters with respect to what is called:

the matter mentioned in Schedule 1 relating to federally relevant criminal activity.

There is what is supposed to be the subsection (3) compliance.  The requirement in paragraph (a) of subsection (4) is supposed to be supplied by clause 7:

The general nature of the circumstances or allegations . . . described in Schedule 1 –

to which I am about to come.  The purpose of the investigation – that is paragraph (c) of subsection (4) in clause 9 – is extremely general, very comprehensive.  Schedule 1, over the page, 2470, reverts to the notion of allegations:

An investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 –

that is, clauses 3 and 4 of the schedule to which I am about to come:

and in the circumstances mentioned in clause 2 –

again, of the schedule:

federally relevant criminal activity:

(a)       was committed . . .

(b)       was in the process of being committed . . .

(c)       may in future be committed.

In relation, obviously, to allegations that exist concerning offences supposedly already committed, one can understand the subsection (3) inquiry into the efficacy of ordinary methods.  It may also be for that which is continuing conduct, paragraph (b) of clause 1 of Schedule 1.

It is pretty difficult in relation to paragraph (c).  The language is about allegations.  In accordance with allegations in 3 and 4, one could make that determination upon what is genuinely a consideration about something that may in future be committed.  The circumstances that clause 2 of Schedule 1 refer to continue that past, present and future notion.  One sees in particular that there is little, if anything, there which provides even a hint of foreign bribery.

That aspect becomes even more telling in clause 3.  Your Honours will be pleased to know I am not going to read any of it.  It is a very long and apparently comprehensive list.  It does not include foreign bribery at all.  However, the argument ‑ which is part of the reason we lost ‑ the argument is that by including money laundering, an offence which, if you will forgive the expression, involves a predicate offence of some kind, then all offences which could be predicate offences for money laundering are within the allegations in clause 3, it following then that foreign bribery, imagined to be the predicate offence of money laundering, is within the determination.

Now, one tart response to that factually, which certainly informs the 24A argument we have, and the holding we had favourably in that regard is that when one looks at the questioning, the questioning had nothing to do with money laundering, and that is a finding which is not we think a challenge.  We think the argument is in relation to 7C that nonetheless we fail because, so long as the questioning could be described as going to an offence which could be in law a predicate offence for money laundering, then that will do.

Your Honours appreciate then that our argument, which I do not need to elaborate much beyond what we have written about it in relation to proposition 7 is that it is just not possible to deduce or infer from that material that there was ever in relation to that determination which is the one that provides the substance of the determination in question for our case, was properly made by in particular observance of the subsection (3) requirement and the statement of the necessary elements set out in subsection (4).

EDELMAN J:   Which of these submissions is that proposition directed to?  Is it directed to a submission that the determinations – or that this determination is invalid because the determination could not have contemplated or did not contemplate the matters that are required by section 7C, or is it directed to a submission that the conduct of the investigations went beyond that which the determination itself authorised?

MR WALKER:   The argument says that the determination itself is not valid and was not valid from the day it was purportedly made because there could not have been observance of subsection (3) in particular but your Honours will have seen that we invoke subsection (4) as well.  The general nature we say is too generally described.

EDELMAN J:   If that is correct, then the broader of the matters that are contained within the determination, the more likely it is not to fall within section 7C.  In other words, if for example, foreign bribery is a predicate of money laundering, if many offences are a predicate of dishonesty or of violence ‑ ‑ ‑

MR WALKER:   That is right.

EDELMAN J:   ‑ ‑ ‑ then that creates the invalidity, not the other way around.

MR WALKER:   That is right, in particular because there could not be a real observance of subsection (3).  The broader the universe, the less possible it would be to say, regardless of the circumstances in future for any of these predicate offences, I consider that ordinary methods will be ineffective; the fairly startling and unpleasant message to the citizenry that ordinary methods will not deal with crimes which are extremely ordinary.  I do not mean foreign bribery, I mean all the predicate offences for money laundering.  There is no sign that anyone ever made such a consideration or determination.

GORDON J:   Well, her Honour seems to address, at least in summary form, that allegation at pages 2268 to 2269 where her Honour sets out the history of how it is that this determination came to be relied upon.

MR WALKER:   Yes, yes.  Now, that is – how shall I say – not in itself a very edifying narrative.  One is tempted to the paraphrase that it was on shelf, available on the shelf, but your Honours will bear in mind that we are appealing against this but it also wears some aspect of redundancy like our 24A argument.  We do not need this in order to make out the sorry state of affairs which informs the discretion in the interests of the administration of justice if we overcome the threshold requirement for a stay.

GORDON J:   Is that right?  I wondered whether if you read Justice Hollingworth’s reasons – and they are extensive ‑ but it seems as though each of these matters, especially if you start at page 2268 onwards, they feed into each other, the way her Honour sees it, as I read it.

MR WALKER:   Yes.

GORDON J:   She had this problem with the determination, you have the problem with way in which the summonses are then fed into it.

MR WALKER:   Yes.

GORDON J:   They are interconnected, the way she sees it.

MR WALKER:   We say that is the proper way and that is why, I hope not disrespectfully, we have criticised aspects of the Court of Appeal’s reasoning as being salami slicing, that is, taking one off and saying where the whole falls, in particular that is important by their Honours’ disapproval of the attachment of the epithet “reckless” to the examiner’s conduct.  That being taken away, their Honours say, the whole falls and we say, no, that is not the proper way to approach an appeal to the exercise of a discretion which involves an anterior evaluation by her Honour of all the circumstances and there is an accumulation of circumstances which has meaning beyond the meaning of the individual items in it.  So, your Honours that completes what I wanted to say about proposition 7 to which I will not return.

With respect to proposition 3 upon which in effect I have already embarked in answer to some of your Honours’ questions, could I add to the passages I have already drawn to attention, that is, paragraphs 846 and following, in her Honour’s reasons.  I need I think simply to complete what I had already referred to; I had mentioned the rubber stamp in 865 as that which would have been self‑evident had the man turned his mind to the requirements of the section, in paragraph 868.

Could I then take your Honours back to paragraph 615 in her Honour’s reasons where your Honours will find, on page 2316, concerning the non‑disclosure of the police presence, her Honour describes that as:

yet another demonstration of his reckless failure to turn his mind to his legal obligations, and his indifference to the rights of the ACC accused.

Your Honours will appreciate that it is the nature of what 24A and 25A permits and regulates – that is, the serious qualification of a fundamental common law right – that informs her Honour’s reference to a “reckless failure” and an “indifference to the rights”.  These are not unimportant or peripheral rights, these are central rights. 

In paragraph 616, with respect to the matters to which I have referred in sections 25A(3) and 25A(7) her Honour concluded in a way that the Court of Appeal does not overturn that the man:

demonstrated an extraordinary approach to [them] . . . one which completely disregarded his obligations to the protections towards a person being examined under the Act.

Now, as a matter of English, in our submission, that does make out recklessness, and I will come a bit later to how case law thought to be relevant on the matter, in fact supported rather than detracted from our arguments below concerning that.

Your Honours see in paragraph 619 the “set at nought” reference to which I made earlier reference.  Could I take your Honours then, please, to paragraph 657, again with respect to this statute, which spoke in mandatory terms about a state of affairs in the last sentence of section 25A(9), the last sentence of 657 in relation to the man’s unsatisfactory explanation, that it “ignores the plain meaning of what” is required.  Again, this is no mere carelessness or the misfortune to be wrong about the interpretation of a statute that this Court will ultimately determine.

And then, I think finally, in this regard, on page 2331, paragraph 694, with respect to perhaps the most surprising or alarming aspect of the evidence given by the officers in question, namely, that subsection (9) “only applied to” somebody “who had been charged, or were likely to be charged” that her Honour describes that as showing “a total disregard for the unambiguous wording”.  Of course, factually, there was no doubt about the imminence of charge known to the examiner.  Her Honour’s expression in 694, as I say, is not a conclusion which was departed from in any way by the Court of Appeal.

BELL J:   To the extent that her Honour based her determination upon considerations of the integrity of the administration of justice, your argument as to however one characterises Mr Sage’s conduct reckless or otherwise, but the blameworthiness of the failure to be scrupulous in the administration of these coercive statutory powers feeds into that aspect of your argument which goes to the integrity of the administration of justice.

MR WALKER:   Yes.

BELL J:   By analogy, is that concern the factor that influences, insofar as the law of evidence is concerned, the discretion to exclude evidence that has been obtained unlawfully that takes account of the degree of disregard of the law in the exercise of the discretion?

MR WALKER:   Yes.  That is what I described earlier as an exact analogy.  Of course I appreciate the occasions for that consideration to play a part are different when one considers the admissibility of evidence and one considers a stay.  But it is exactly analogous in terms of the response of the judges in the administration of justice to the attack on the integrity of the administration of justice which occurs with more or less gradation of condemnation being appropriate depending upon, among other things, states of mind.  So well‑known phrases like “deliberate disregard” are a flying start to a 138 exclusion whereas an “accidental good faith mistake” is normally the end of a successful objection under 138. 

Now, I am not suggesting those are the only relevant considerations in an evidentiary discretion.  They are not but they are very important.  The way in which they operate is exactly the same concern for the integrity of the administration of justice which, when one is referring to observance of safeguard provisions enacted because fundamental common law aspects of the relations between persons and the criminal law system are affected, then all the more significantly does one examine the circumstances and character of conduct by which the unlawfulness came about. 

Although that may not be entirely captured by the expression “state of mind”, state of mind will be relevant to that.  The state of mind of somebody who does not even turn his mind to something is, we submit, the state of mind of somebody who does not care - certainly he is not careful, but does not care because the only way to care is to turn your mind to it.

GORDON J:   In Lee (No 2) the Court described that sort of failure as, in effect, no decision at all and therefore unlawful in that sense. 

MR WALKER:   Yes.  Certainly no one says – no one against us says there was a decision under 25A(9), here look at the evidence that shows that he turned his mind to it and simply came up with a result that is objectively wrong.  That is not possible on the record in this case.  Hence the significance of the repeated findings upheld in the Court of Appeal, that he just did not turn his mind to it.  Now, if you do not turn your mind to the exercise of a power, here the observance of a duty, the last sentence of subsection (9) ‑ ‑ ‑

GORDON J:   The Court in Lee (No 2) describes it as the “protective purpose”.

MR WALKER:   Yes.  Unless you turn your mind to it, then obviously there is no decision under it.  Or, to put it another way, an omission to do something which you are obliged to do can only, with some strain, be tortured into standing for a decision not to do it.  If you never thought about whether you have to do it or not it is really simply stated as you did not observe your duty.  I stress there may be an evaluation involved in the elements of the last sentence of subsection (9) but there is no discretion. 

Could I then come, in relation to the administration of justice point that I have already answered some questions about, to the last of the matters I wanted to raise in proposition 3, and that is the matter in particular that we note in paragraphs 86 and 87 of our written submissions in‑chief.  I do not, I think, need to add to it in light of what I have already supplied in answer to your Honours but could I in particular call in aid what we respectfully submit is a very serviceable summary of the non‑necessity of concern with a particular epithet like “reckless”, let alone the jurisprudence about “reckless” in criminal statutes and the like. 

One sees that in the passage that we have quoted from Justice Kirby’s reasons in Truong 223 CLR 122, which we have set out in our paragraph 87. I will not read it. In particular, the notion of a result being one which the courts exercising the judicial power cannot tolerate or be part of picks up the matters that I was referring to, particularly in answer to the Chief Justice and Justice Bell.

GAGELER J:   Are they separate things, “tolerating” and “being part of”?

MR WALKER:   They might be separate but they will often go together because the toleration of conduct can shade rapidly into being party to its effects being perpetrated, but they are overlapping rather than entirely congruent.  I do not know whether your Honour has asked me whether his Honour was engaging in a form of hendiadys; maybe he was.  They are words that capture the notion that the courts need on occasion to mark by their decision the alien nature, the extraneous and hostile nature, to their endeavour of what somebody else has done.

GAGELER J:   It is - if you focus on the second part of it, it is possibly looking at unremediable effects.

MR WALKER:   Yes.  I am coming to the unremediable aspect of matters.  I accept that that is an essential part of our case, yes.  Could I now turn, in proposition 4, to the error we urge can be seen in the Court of Appeal’s overturning of the finding of forensic disadvantage.  Your Honours have seen that, by way of transition to this point from the point I have just finished, we have set out in paragraph 56 of our written submissions the correction, as their Honours saw it, administered by them to the conclusions of her Honour at first instance. 

In particular, we have drawn to attention what their Honours say in their paragraph 116 about the examiner not having undertaken reasonable care to understand what his obligations were under the law as it stood, which picks up a deal of what both her Honour had said and I have argued, but then going on to say in a way that their Honours saw as fatal to our position that this was not recklessness in the legal sense.

I will come back to the question of what is called recklessness in the legal sense, and my learned friend, Mr Tehan, may touch on that as well.  But can I move first to the way in which the forensic disadvantage matter fell out?  There was, by reason of what must be a misunderstanding of the way in which the argument was presented below, what might be a false issue raised and then avoided by their Honours in the Court of Appeal concerning observations of your Honours Justices Gageler and Keane in Lee (No 1), and by that I mean of course the decision which is reported at 251 CLR 196.

Now, we have set out in writing, including in reply, why it is simply not correct that I had conceded below that the matters that had been raised with me, based upon the observations of Justices Gageler and Keane in Lee (No 1), concluded in a way adverse to us below.  I do not need to go to the transcripts.  We have given the references and it is a plain as a pikestaff that we took issue with it on a number of bases including the proposition that those observations were not the law.  They were simply observations which circumstantially may or may not have purchase in a particular case.

But if I can take your Honours first of all to the way in which the Court of Appeal saw that matter falling out, in volume 15 of the appeal book starting at page 4933 and picking it up at 297, this reasoning concerns a concern in relation to so‑called forensic disadvantage arising from the exercise of locking a witness in, that is, asking questions which are not anodyne in the sense that they do not go to suspected offending.

They are the very opposite of anodyne because that is all they are intended to do and that is what they did and that is what happened in this case, the big contrast between our case and what happened in X7 when it returned to the Bench of five of the New South Wales Court of Appeal where there was no demonstration of what the questioning had been.  In this case it is the very opposite of anodyne in that sense.

Then that raises the question that is affected by those observations of Justices Gageler and Keane in Lee (No 1).  What is the true nature of the forensic disadvantage?  What are the arguments about legitimacy or illegitimacy when someone has been, in the jargon, locked in?

Now, of course, nobody is ever locked in to an admission they have made in the sense that yes, the history of the admission, leaving aside restricted dissemination and prohibition on direct use, the history of the admission will be there, locked in in the sense that it is irreferable. 

Everyone can explain things they have said in the past and people can refer and deal with records of what they have said in the past which may appear to be adverse to their current interest in a very wide range of ways, only one of which is the – in my experience, at least – usually a very ineffective way of saying, “Believe me, I was lying then.” 

Mostly, it will involve of course references to context and, in particular, will call in aid circumstances such as, “I didn’t have before me such and such a document; I now have that document and I must be wrong.  I couldn’t have been at that meeting because I’ve now seen minutes and a passport, et cetera.”  That is just one homely example.  It is not the case that so‑called admissions, confessional statements, it might be, are, as it were, forever.  They can be explained. 

Explaining them may be forensically very difficult, that is, poses a dispute about a matter of fact other than the offending itself, that is the matter of fact about your honesty, care, et cetera, when you gave the previous answer.  That is, of course, a forensic disadvantage not to be able either to present your own version or to run your defence because there is out there, you know, a version which will call for explanation. 

Now, nothing I have said so far involves the proposition that the only forensic disadvantage suffered by a person who has been wrongly forced on oath to say something against his or her interests in an administrative examination is that that person will thereafter not enjoy the same liberty to cheat or lie either in giving instructions or in colluding with criminal counsel – I mean counsel who are acting criminally – to pervert the course of justice by presenting a concocted or false version either affirmatively or by suggestions in cross‑examination.

That is an effect no doubt suffered by that class of persons who may be so inclined.  I will not be so naïve as to suggest there will be found no counsel who would co‑operate with such an exercise, but one certainly would not approach the adumbration and development of principle that one sees in Hammond, X7 and X2 on the basis that is a likelihood that the Court takes into account, namely, concoction between counsel acting criminally and an accused person.

It is for those reasons, in our submission, that the excessively neat way that the Court of Appeal dealt with this matter of argument in the passage I am coming to is itself wrong.  At 297 they start by noting an acceptance by the DPP:

that, if a respondent had made an incriminating admission during the examination, this would prevent him from adopting a contrary position at trial, either through his counsel or in giving evidence.

Now, that is an overstark or simple explanation.  It does not prevent, but it may severely embarrass and severe embarrassment affecting the calculus of the choices you make concerning your defence is precisely what this Court repeatedly has had in mind, not least in what we would submit with great respect is the seminal if brief description of the matter by Chief Justice Gibbs in Hammond.

EDELMAN J:   It goes beyond embarrassment, does it not?  I mean, it could be a legitimate psychological barrier to the conscious and honest departure from a recollection or an understanding or an explanation?

MR WALKER:   Or being badgered by what was held in this case to be aggressive questioning or leading, for example, together with avuncular advice from the examiner to think about things over an adjournment, et cetera - in other words, the kind of conduct which might call for close attention if it was a police interview.

So, yes, of course there are many ways in which using the word “embarrassment” in the technical or 18th century sense one is faced with obstacles that become an important part of the judgments which you and your counsel can make and they impede, not absolutely, but perhaps absolutely in some cases, courses of action that you might otherwise have been inclined to take. 

They present perils, chances of not persuading a tribunal of fact, for example…..of onus or it has to be sold which would not otherwise have - none of which has anything to do with the charter for cheating which is the preservation of silence in such a way that when you do get into the witness box and tell a story no one can say “But that’s not what you said before the examiner”.  That is, in our submission, a distorting possibility that does not answer the robust way in which, as I say, from Chief Justice Gibbs in Hammond onwards, this Court has consistently viewed the matter.

The submission of the Director recorded in 297 which appears to have won the day in the Court of Appeal was that it could not be regarded as an unfair constraint, that is it is a constraint but not unfair, given that the court must proceed on the assumption that an examinee would give truthful instructions to his counsel.

Now, pausing there, it does not follow that truthful instructions to counsel are in accordance with what was said at the examination.  People make mistakes or change their recollection or say on reflection “I would not actually put it that way and I am not very happy with the words put in my mouth by the examiner”, or “I have since discovered a document which shows that we were all wrong”. 

Now, that assumption of giving truthful instructions does not go anywhere.  However, it is the subject of a concession by me below which I repeat here today.  Nothing concerning the administration of justice and the values required for its proper proceeding could possibly be founded on the absurd notion that those facing either charge, pre or post, or trial or at trial, should have a liberty to lie.  We do not found any part of our argument of this and it cannot be seen anywhere in the jurisprudence to which the written submissions have turned. 

That argument is then ‑ apparently successful argument is then further recorded in relation to counsel receiving instructions who, in turn, would be ethically obliged to conduct the defence consistently with those instructions.  Now, one has to observe the distinction between the instructions given to counsel and the evidence, so called, or answers given at an earlier pre‑trial stage, in our case, ex hypothesi, unlawfully extracted. 

It is not true, I repeat, that the instructions to counsel must be in accordance with the examination.  Indeed, the duty – the moral duty to be truthful will include pointing out where a mistake was made in previous statements.  Now, that is true whether it be an electronically recorded interview or a written record of interview or anything else.  Part of the obtaining of proper instructions is to find out is there any defect or mistake or error, including an error perhaps by lying on an earlier occasion. 

How else could there be the common sense jurisprudence of the use of lies as evidence but for the fact that of course when one comes to consider the true state of affairs, there will always be involved the possibility that previous statements by the accused person were not correct for whatever reason. 

It is for those reasons that conducting a defence consistently with instructions should not be elided as to relevant distinction so as to comprehend “obliged to conduct the defence consistently with previous statements in answer to examination before trial”.  All of this is contained in the passages by which we contest the notion of a concession which has been levelled against me.

Your Honour sees the reference to the critical passage in Lee (No 1) set out by their Honours in paragraph 298 and then, on the basis of that spurious concession in 299 why that question having been raised is then, as it were, avoided in a way that left, as it were, open the matter. 

As your Honours know, and I do not need to elaborate beyond our written submissions, it is clear from Lee (No 2), in our argument, that it is simply not the case that the driving or motivating purpose of detecting fundamental defect in a trial following unlawful compulsory examination on matters of guilt has anything to do with what I call the charter for cheating.

BELL J:   There is another dimension to it also, is there not, in that, when one speaks of truthful instructions to one’s counsel and one assumes that an ethical relationship exists between counsel and the client, the accused under our adversarial system is not required to make admissions, including to his or her counsel, and can elect to run a trial on a basis of letting the prosecution prove its case.  That option may be affected by the circumstance that a truthful client has been locked into an account under a coercive examination of which the truthful client has informed his or her counsel.

MR WALKER:   Yes.

BELL J:   At that point at least, some options are reduced in terms of the conduct of the defence case.

MR WALKER:   From Hammond through to Lee (No 2), that has been consistently what I will call the governing view in this Court.  At this point, if I may be permitted to add a matter of what might be called policy of a consequentialist kind, if it were otherwise – that is, if, under the rubric of practical injustice or no charter for cheating or by whatever method one got here – if the law were that when somebody has been locked in, so to speak, you will have to show why that is a forensic disadvantage of a kind that justifies a stay or presents a fundamental defect to the impending trial, the following considerations will arise. 

First, there will have to be, before the trial is had and before it is known the stay will be granted – in other words, where there still is a real risk the trial will be had – there has to be some disclosure to the court and to the prosecutor of what you would have in mind but for the examination that you protest about.  What was the real calculus that really in my case has been altered detrimentally to my forensic position by reason of this examination having, as they say, locked me in or apparently done so?  A court is not entitled, except where statute has specifically required it, to be told about such interior cogitations of the defence.

GAGELER J:   So, Mr Walker, does the proposition reduce to this, that for a person who might be charged with a criminal offence to be asked questions about the subject matter of that offence is per se to visit a forensic disadvantage on that person?

MR WALKER:   For them to be forced to do so, yes, yes.

GAGELER J:   That is, of itself, an irremediable forensic disadvantage.

MR WALKER:   Now, your Honour, that question, with great respect, is difficult to answer.  Let me attempt it.  There are undoubtedly, culminating particularly in Lee (No 2), aspects of the jurisprudence in this Court that we have called in aid that would appear to say, for example, regardless whether an examination is secret and regardless whether its product is shared with investigators or prosecutors, such conduct has the effect that Justice Gageler has asked me to consider.  It is irremediable, it has happened.

There is no doubt that when one goes back to the classical genesis of it in Sir Harry Gibbs’ reasons in Hammond - I do not suggest he was starting something new, that his Honour thought he was summarising something very old and correctly - when you go back to that, when you consider it in Lee (No 2), there is no doubt there is text in the jurisprudence that would rather suggest it is not to the point that you do not inquire whether this can be remedied or not. 

However, I am bound to point out that when one looks at a collection of cases, both intermediate appellate decisions and in this Court, concerning in particular in the stay jurisprudence the test as to whether this is a fundamental defect that can or cannot be cured by the trial judge the premise explicitly is that the world of difference will be made depending whether or not the system can deal with the attack on it.

GORDON J:   Is that the question or is the question really, if you go back to this statute, to work out whether or not there is the capability, given the broad powers, for them to be exercised in a way which does not get to any question of fundamental defect.  In this sense it may be, for example, and I think the example has been given of people who are not the subject or suspected of being charged, being examined.

MR WALKER:   Yes, yes.

GORDON J:   There is also the prospect, is there not, I thought at least in some of the passages and it seems to be identified by Justice Hollingworth herself in a number of places, where it would have been possible for these people to have been examined and for there to have been in place arrangements between the AFP and the ACC so that the disclosure was limited to the point where it was not given to those who were, for example, investigating the material.  In other words, they are not the ones who are prosecuting, not given to the CDPP. 

MR WALKER:   Yes, your Honour anticipates what I was about to say.

GORDON J:   Right.

MR WALKER:   But clearly by implication ‑ ‑ ‑

GORDON J:   It is not implication though, it expressly provides for it.

MR WALKER:   Sorry, I was about to say, clearly by implication the way her Honour approaches that says it can make a difference depending whether something can be done about it.

GORDON J:   It is not a curing process.  It is a preventative process rather than curative.

MR WALKER:   But if it was not prevented, her Honour does contemplate – and I have drawn your Honours’ attention to the passage in her reasons where the expedient of getting rid of the prosecutors or replacing the prosecutors is considered, but then ‑ ‑ ‑

GORDON J:   That is curative.  We are talking about ‑ ‑ ‑

MR WALKER:   I appreciate that.

GORDON J:   You are addressing Justice Gageler’s question about whether it is never possible for someone who is suspected or possibly likely to be charged to be examined under this regime.  Now, the question which arises is whether or not it is possible to set up an arrangement or a structure within the current regime to permit it, given the fact that their derivative use immunity is not incorporated into the Act.

MR WALKER:   No, quite.  It is entailed in subsection (9) for those who may be facing a trial.

GAGELER J:   Mr Walker, if the vice is locking in the potential accused, what does the ‑ ‑ ‑

MR WALKER:   I am not sure it is, by the way but, yes.

GAGELER J:   Well, we are focusing on 297 to 298, but if the forensic disadvantage is being locked in to an account, how does the extent of the publication really matter?

MR WALKER:   Your Honour, with great respect, the logic of that is very attractive, and that is why I have pointed out that there are I think simultaneously or concurrently present two strands in this Court’s jurisprudence.  They are found in the same decisions.  One says – and I will simply call it a plain Hammond approach – one says you are very likely by the very fact of being wrongly interrogated about your answer to a future charge or a current charge be prejudiced in your defence for all the reasons that, with respect, have been explained in detail in this Court, including particularly in Lee (No 2).  That is, it would appear, if you do not read other or further in the same decisions in fact – that appears to be a sufficient and complete statement of that which would give rise to a fundamental defect.

GAGELER J:   That is precisely what the statute permits.

MR WALKER:   And that is one of the reasons why I do not wish to rest our case on that point.  We are not attacking the validity of a statute.  We had a totally different and, with respect, more robust answer about the statute.  It has not been obeyed.  This was unlawful questioning, not lawful questioning, and this is not a case about statutory interpretation either, or we do not think so, subject to arguments on the so‑called contention.

So that we say, as I said in opening the appeal, that the fundamental defect is one which cannot be cured, and that last part, cannot be cured, does call in aid the kind of expedient that goes by names of quarantining and the like.  We do embrace as necessary being able to show that the fundamental defect cannot be cured.  Now, that means ‑ it is a question of degree of course – cannot be cured sufficiently so as to prevent a trial otherwise than a trial according to law.

Now, where investigators and prosecutors have obtained the benefit in compiling the brief – I stress, in compiling of the brief, this is not the week before trial – then, in our submission, the egg cannot be unscrambled.  It is impossible to see any cure.  Her Honour could not find one.  I am going to go to a supposed but ineffective cure proposed by the Court of Appeal in a moment.

KIEFEL CJ:   But that is by way of conceding, is it not, that whether one is looking, as Lee (No. 2) did, retrospectively to see whether or not the nature of the trial had been altered or whether one is looking prospectively, as cases involving permanent stays do, that the Court is required to see, if a new trial is required because the trial was not of the nature that our criminal process requires or whether or not a fair trial can be had, that question must be addressed in either case.

MR WALKER:   Yes.

KIEFEL CJ:   So we are not just talking about a fundamental defect and that is the end of the question; we are always looking at whether or not the trial process can either carry forward or has miscarried in a fundamental way.

MR WALKER:   Yes.  That is our case.  We have to go further and show that that which is a fundamental defect is such in the circumstances as to prevent a fair trial.

NETTLE J:   Do you have to show or does the Crown have to show that it could be fair?  After all, there has been a defect, what you might call a miscarriage.

MR WALKER:   Your Honours will have seen that we enlist a Blatch v Archer approach on a related, not exactly the same, aspect of the argument.  We bear from beginning to end the burden of persuading to the extraordinary remedy of a stay, easily stated but it does not answer your Honour’s question entirely.  During the course of the to and fro in that argument, if a position is raised which shows a fundamental defect, it is certainly not for us to jump to the other side of the Bar table and start providing helpful suggestions as to how we may be fairly prosecuted. 

It will be enough to say ‑ a la I suppose an evidentiary burden shifting – we have shown a fundamental defect, we assert, by nature of it being a defect and fundamental, it follows, inherent in that is the trial would be unfair, unless cured, and in this case we were able to say that they are not going to cure because they do not want to get rid of (a) their brief and (b) their investigators.

KIEFEL CJ:   You have the findings of the primary judge and you have the Court of Appeal saying that regardless of that there are measures which can be put in place or not.  Is not the question simply whether or not the Court of Appeal is right about that?

MR WALKER:   Yes.  The Court of Appeal, with respect ‑ ‑ ‑

KIEFEL CJ:   Whether one could have confidence in that.

MR WALKER:   The Court of Appeal reached this conclusion.  Not even the prosecutors needed to be removed.  For some reason, which is not part of their conclusion, it would be salutary if they were removed.  That is a rather disconcerting approach – that is, it would be nice if this were done but you do not need to do it.  It is only nice to be done because there is a sense, correctly engendered, of institutional unease by the notion of those prosecutors staying in office.

KIEFEL CJ:   From your perspective, it is not so much, as I understand it, the – and from what the primary judge found, it is not so much the evidence that was obtained as a result of the questioning, that is it presents a potential problem at trial, it is that so many people know what was said during the examination.  That is the area we are talking about.

MR WALKER:   That is right.

KIEFEL CJ:   Now, people either can or cannot be quarantined from that successfully or unsuccessfully.  Is that not the area for discussion?

MR WALKER:   Yes, and in this case, the findings are that the investigators cannot.

KIEFEL CJ:   The Court of Appeal answered that by saying?  I mean, that is the area we are in, are we not?  The primary judge has made these findings.  Did the Court of Appeal deal with it correctly and did it show that the primary judge was in error and that it was a mistaken view and that this really could be remedied?

MR WALKER:   The answer is, no, their Honours incorrectly overturned that part of her Honour’s reasoning by reference to this incorrect notion of a not unfair constraint that you see in paragraphs 297, 298, 299 and 300, and at that point it was sufficient for their Honours to say, well, we do not have – because there is no forensic disadvantage we do not have to think about cures.  That means that not even the prosecutors have to recuse themselves but, by the way, it would be nice if they did, so that her Honour’s holdings about it not being possible and the prosecution having turned their face against getting rid of the investigators and the brief is not to be unscrambled, that is our Blatch v Archer point. 

The Crown is not going to do the work which is quite impossible for us to do, as her Honour found in great detail, leaving then in place the proposition that fundamental defect as identified by her Honour could not be, would not be cured.  Now, that is a recipe for a stay, exceptional as it no doubt is and one would hope will remain.

BELL J:   Whilst the Court of Appeal considered that her Honour was wrong to finding fact a forensic disadvantage, it was not an overturning of her Honour’s findings at paragraph 880 that the deliberate coercive questioning of suspects who had exercised their rights to decline a cautioned police interview was used for the purpose of achieving forensic disadvantage to the accused. 

MR WALKER:   No.  In fact, their Honours embraced that, advanced it.

BELL J:   Yes, and that finding fed into her Honour’s conclusion that this particular omelette involved not only consideration of is it possible to secure a fair trial but what it meant for the Court to lend its trial processes to an investigation that had been conducted in that way.

MR WALKER:   Yes, that it is the double‑barrelled approach that I referred to when I took your Honours to that conclusion.  Yes, is the answer, yes.  In answer to the Chief Justice, the way the Court of Appeal dealt with that was simply, we say, wrongly, for the reasons I have already sufficiently developed.  Her Honour was wrong to find a relevant unfairness and, therefore, questions of cure disappeared.

Now, they did, however, then entertain an alternative, and could I take your Honours, please, to page 4934, to the Court of Appeal’s paragraph 301.  This is the only, as it were, consideration of practical forensic matters in this part of their reasoning.  So taking as a proposition a premise in the alternative that “particular lines of cross‑examination . . . might be impeded” – that is how they start.  That stands, as it were, for a relevant unfairness.  So they turn to the notion of a cure.  They plainly have in mind here the not unfamiliar mode of testing a prosecution case which explores the possibility of what I will call investigators’ bias:  you only looked for these things and you did not look for anything else.  It can be very valuable, bearing in mind the nature of the burden of proof.

But their Honours, considering that kind of questioning, had in mind in this alternative position the difficulty presented for the cross‑examiner knowing that he or she will be rapidly answered by questions about “Why did you not look at this?”, “Why did you not look at that?” by something to the effect of “Because your client told me where to look and where not to bother”.  And their Honours make this suggestion.  It is:

capable of management by the trial judge.

Now, management by the trial judge is, of course, the paradigm of the way in which a fundamental defect may be cured.  Management is this:

Those investigators who give evidence can be instructed that they will not be permitted to explain their actions by reference to what they learned (or believed they had learned) from the ACC examinations.

Now, that can only occur in, I think, two ways.  One is what I am going to call feigned evidence, which is a polite way of saying “untruths”.  Their Honours could not possibly be proposing that that would be a way, in the interests of the pure administration of justice, for a fundamental defect of this kind to have been cured.

The only other possible way is that they are, as it were, struck dumb when the subject matter of the question would evoke but for the management a reference to the proscribed or unlawful ACC examination.  What the jury would make of that is something which in itself represents the embarrassment to the position of the defence which is, in our submission, exacerbated rather than cured by such an expedient.

Now, to be fair to their Honours, they do not develop this and I cannot recall – I will stand corrected if I am wrong – I do not think this emanated from the DPP as a proposal.  But you will find that what the DPP did propose, then set out in paragraph 301:

the trial judge could deal with the matter by excluding the evidence, or via other appropriate directions –

And, with great respect, “via other appropriate directions” contains not only an assumption which is questionable but provides no enlightenment at all as to how the cure would be effected.  But as to excluding the evidence, that, of course, has the effect, surely, of precluding that kind of scrutiny, scepticism, testing of the investigation by defence questioning ‑ “You cannot go there because it will call up something which I will exclude”.  So it only, again, exacerbates rather than alleviates the position.

Your Honours are aware that, with respect to forensic advantage, and perhaps, to an extent, forensic disadvantage, the Court of Appeal detected error in the way in which her Honour made findings as to the use that had been put by the investigators ‑ by extension, prosecutors eventually – of material derived in light of the intelligence gained by these unlawful examinations. 

We turned to this in our written submissions, starting in paragraph 75.  In address, I simply want to add this by way of emphasis.  It is not the case that all but the main witness, who is given the pseudonym “Schwartz” in our paragraph 79 – it is not the case that the evidence of the other many officers was to the effect that there had been no such use. 

There was a standard formula in their affidavits and the formula was that they did not take examination material into account when any decision to charge was made, which of course is of no relevance at all unless they are decision‑makers and is not in any event anywhere near a complete answer to the derivative‑use complaint.  Further, that they did not include examination material on the brief. 

In terms of material that can be tendered, of course, use immunity controls, but examination material is not at all the same, of course, as the assembly of a brief in light of information obtained by the examination.  That is why – I will not take your Honours to it, bearing in mind the time and the pressing of my colleagues for time – the evidence we have noted in our paragraph 79 is important. 

The fact is, as her Honour records, that the material was resorted to, and it is never to be forgotten, as her Honour points out, that everybody in question thought they were entitled to use it.  The Court of Appeal, in our submission, were wrong to find error in the well‑founded inferences by her Honour concerning the use to provide a brief.

There is an allied matter also developed in our written submissions that I need to emphasise.  It is simply not the case that this was an examination that occurred, as it were, at the heel of the hunt and that the brief was, as it were, already assembled - to the contrary by a huge preponderance.  That was an error by the Court of Appeal.  We have made those submissions in particular with references in our paragraph 81.

Could I then move, please, to proposition – I have dealt with proposition 5.  Could I complete what I wanted to say about proposition 6 to which I have already directed some anticipatory remarks?  We have set out in our paragraph 91 what perhaps unfortunately in retrospect was a reference to case law about recklessness.  The problem is obviously that the word here has not been construed in a statute and that no amount of case law requires that kind of attention to a single word.

But for what it is worth in the quotation from Helmhout 125 A Crim R 257 contained in Marijanevic 33 VR 440 there quoted, of course there is the position conveyed by the last phrase of that quotation, or “a ‘don’t care’ attitude, generally”. That is added as an alternative, that is, a case that needs to be covered - so far as the court was concerned for the purpose of understanding the word in those cases – that needs to be covered quite apart from what might be called the ordinary case of advertence to the possibility of breaching some obligation, picking up the general provisions, say, that one sees in the Criminal Code concerning the nature of recklessness.

But a “don’t care” attitude generally is admirably described by the ordinary English of “reckless”, and that is what her Honour was doing.  But whether that label is attached or not is, for the reasons we have put, immaterial.  It is the nature of the conduct where the Court of Appeal did not see any need to correct any of her Honour’s conclusions that conveys, in our submission, the position for which we need to contend.

Your Honours, that brings us then to the end of the propositions I wanted to address over and above our written submissions.  Could I say this in particular about propositions 8, 9, 10 and 11 which are in answer to a notice of contention?  Principally we wish to say this.  On our understanding of the record in this Court, the DPP, that is the prosecutor, has no notice of contention and in their written submissions in this Court what they put to this Court about the notice of contention is not – that is it is not relevant. 

So one cannot have a more obvious and clear forensic stance of the prosecutor against who we sought the stay.  They do not rely on a notice of contention and they regard the matters sought to be raised by the notice of contention as not relevant to their answer to our appeal.  Our appeal is against the overturning of the stay which we have sought and initially obtained against the prosecutor.

We never were prosecuted by, and never will be prosecuted by the ACC or the ACIC.  We do not read anything in the written submissions of the prosecutor as qualifying to the slightest degree that state of affairs.  Why should we face arguments to maintain a stay which are not embraced by the officer of court charged with all the judgments and discretions appropriate to prosecution, which is the prosecutor? 

The ACC is not subject to prosecutorial duties.  The ACIC does not have to consider the matter from the point of view of the particular case or

general principle in relation to this particular prosecution.  They got to intervene because statutory provisions important to them were the subject of, as it were, requests for assistance by her Honour. 

Alas, we did not object to a so‑called intervention at first instance.  We certainly did in the Court of Appeal.  Because that objection was to no avail, as we understand the current understanding of the Rules in this Court, they must be a respondent here.  Well, it might be said audi alteram partem they are a respondent here, they can be heard to do anything. 

In our submission, no.  There remains questions of standing and they are of particular significance when it comes to accused persons facing a prosecution and seeking to wield the tool of a stay.  You can only seek a stay against a prosecutor and it is for those reasons, in our submission, that your Honours should not entertain the so‑called notice of contention.  You should not determine its merits because, in our submission, the Commission simply has no standing to say that we should be prosecuted, that is there should not be a stay.  That is for the prosecutor.

KIEFEL CJ:   ACIC were made a party by order of the court below.

MR WALKER:   I cannot remember whether the word “party” is used but they were granted leave to intervene. 

KIEFEL CJ:   That was challenged in the Court of Appeal.  Was that part of the appeal?

MR WALKER:   No.  There would be no point in us doing that.  I will delay then propositions 8, 9, 10 and 11 until after my friend the Solicitor has - may it please the Court.

KIEFEL CJ:   Mr Tehan.

MR TEHAN:   If the Court pleases, we adopt the submissions of Mr Walker.

KIEFEL CJ:   Mr Cahill.

MR CAHILL:   If the Court pleases.  On behalf of Mr Galloway, our principal submission, as it was before the Court of Appeal, is that, as her Honour found at 880 of the judgment, the unauthorised, coercive examination of suspects for an improper purpose of achieving advantage to the AFP and the Crown in the prosecution of those suspects was a basis to stay the trial regardless of proof of demonstrable unfairness.  We rely on our written submissions and we adopt the submissions of our learned friends on behalf of Mr Hodges.

In the alternative we have submitted ‑ this is proposition 2 in our outline ‑ there was, as her Honour found, demonstrable unfairness.  We submit that her Honour’s findings at 873 of the judgment ‑ firstly, that it was “highly probable” that the AFP used examination material to generate inquiries and target witnesses and second, that it was possible the information was used in getting witness statements dealing with the appellants and compiling briefs against them ‑ were correct. 

We submit that contrary to the finding of the Court of Appeal, which appears at paragraph 276 of the reasons, the issue of forensic advantage was explored.  We rely on our written submissions in relation to the cross‑examination of the police officer, Singleton, who compiled the […] brief of evidence, who had observed Galloway’s examination and had taken statements of two important witnesses, Mitchell and Russell, who are referred to in our submissions.

GORDON J:   Can I ask how that sits with her Honour’s findings at 760 to 763 dealing particularly with your client?  I understand his subsequent conduct may have rendered all that – those submissions nugatory.

MR CAHILL:   In our submission, her Honour’s findings with regard to the possible use of the examination material in compiling the brief of evidence stand separate to what her Honour said with regard to the effect of Galloway’s disclosure of a voluntary interview of those matters that he had put at the examination.  But her Honour ‑ ‑ ‑

GORDON J:   And the conduct at the committal?

MR CAHILL:   And the conduct – yes, that is why I am to my feet now to deal with those two issues and I will attempt to do that in a moment.  But we do submit that there was an attempt made indeed by us on behalf of Galloway to explore this issue in the cross‑examination of Singleton in his role, his extraordinary role in compiling the statements of those two important witnesses and the reason that they are important, that is, Mitchell and Russell, is that Singleton had heard it raised in examination to say that he had little involvement with the foreign agent.

The prosecution case against him effectively is that he was dealing with that agent so that he must have known, on the prosecution case, that the agent was endeavouring to offer bribes to foreign officials.  So the issue - and this will have been known to police on 12 April 2010 when Galloway was coercively examined - they would have known this was an issue about the nature of his dealings with this particular agent and the two witnesses that Singleton spent so much time with after he had heard what Galloway had been coerced to say. 

Their statements focus on this aspect of the degree of association between Galloway and the alleged corrupt foreign agent and we had attempted in our cross‑examination to establish that Singleton had been influenced by what he had heard unlawfully at Galloway’s examination and that he had in turn influenced those witnesses whom he spent five and six days with in the compilation of their statements and we would submit that her Honour’s finding that really it is impossible to test the extent of that influence, notwithstanding our attempts to have done so.

In relation to what Justice Gordon has raised, two features that set Galloway apart are that six months after his coercive examination Singleton approached him again for an interview and that Galloway agreed to participate – did participate in the interview and as her Honour found made disclosures substantially the same as what he had said when he attended at the Crime Commission to be compulsorily examined.

But what Galloway did not know is that Singleton, the police officer, had observed his examination and as her Honour found, Singleton knew his defences.  He had heard Galloway say at the Crime Commission that he had no knowledge of allegations of foreign bribery.  Our submission is that his acquiescence to the subsequent request for an interview must be viewed in light of his earlier dealings with police – that is, in April 2010, six months earlier – when they brought him coercively before the Crime Commission, where he was asked the same sorts of questions, that is, about his alleged involvement in foreign bribery.

At the committal hearing in 2012, his counsel, me, cross‑examined Singleton about evidence that Singleton had given before the Crime Commission.  In the conduct of his committal, Galloway faced the extraordinary circumstance where the police and the prosecution had from him a sworn version of the events which were the subject of those charges being heard at the committal.

At the Crime Commission he had made denials.  Those denials were adduced into evidence on his behalf by me in order to show consistency with the denials that he had made at his subsequent police interview and it was made to bolster what in the end was a successful submission to the magistrate that there was no case to answer.  The Crown subsequently directly indicted Galloway in respect of those proceedings.

Our submission is that notwithstanding those two disclosures ‑ Galloway’s interview and cross‑examination on his behalf at the committal – the irremedial disadvantage that he suffered remains, that those disclosures made by him do not remedy the unlawfulness of his

examination and they do not remedy the improper purpose for which his examination was held and the improper purpose which the police achieved.

Our final submission is that neither can those disclosures remedy the disadvantage he has suffered, which her Honour identified at paragraphs 747 and 748 of her reasons, and that is he has been denied his right to defend the charges against him only on the basis of putting the prosecution to its proof.  If the Court pleases.

KIEFEL CJ:   Thank you.  Yes, Mr Mandy.

MR MANDY:   If the Court pleases.  I adopt the submissions of my learned friends in relation to the other three appellants.  I propose only to, by way of emphasis, elaborate on some of the matters contained in my outline of oral submissions.  Your Honours are well familiar with the facts and I do not need to take you to that section of my submissions.  I do, however, want to expand on a matter that Mr Walker raised in relation to forensic advantage to the prosecution, which is dealt with at paragraph 6 of my submissions and this is, if you like, an antecedent consideration in the accusatorial process that is part of the investigative part of the preparation of the brief. 

It relates to the error identified in paragraph 81 of the submissions on behalf Hodges, and that is that the Court of Appeal appeared to proceed on the basis that there was a brief already in existence at the time of the appellant’s examinations and that was a misunderstanding of the nature of the evidence before her Honour.  The error demonstrates, firstly, that forensic advantage to the prosecution can be made out and, secondly, it demonstrates the wisdom of the caution that an appeal court needs to employ when considering the discretionary judgment of a trial judge.

It is apparent from the evidence and was apparent to her Honour that the brief in relation to one of the countries, in relation to which all four appellants are charged, was not authorised to be prepared until a substantial time after the examinations.  The Court of Appeal in a number of passages proceeded on the assumption that there was a brief already in existence that the case against the appellants would not materially change as a result of the examinations because “the prosecution or the investigators had everything they needed”.  That was not the case in relation to that country.  The brief was only authorised to be prepared some eight months after the examinations and was finally prepared in September of the following year.

In that context, the background needs to be appreciated, and that is that, in order to compile that brief of evidence, these investigators were required to look through however many millions of documents – a number so vast that no one seems able to accurately estimate how many millions it

is.  They needed to be able to look through that vast number of documents in order to compile the brief. 

The position was that the Operation Thuja investigative team, nine members of whom were present for the appellant’s examination, were part of the team that prepared that brief, part of the team that prepared that brief in relation to all four of the appellants and who had been present for all four of their examinations.  To address a question of quarantining and the extent to which all of that material could be quarantined from an investigative process, leaving aside the trial process, is difficult to imagine.

The only other point I wanted to make was that, in connection with that, it displays, as I say, the wisdom of an appellate court paying due deference to the discretion and findings of fact of a trial judge.  Her Honour understood and analysed properly the legal principles governing the grant of a permanent stay and the applicable case law relevant to the Hammond principle. 

Her reasons were thorough and comprehensive, both as to the law and as to findings of fact, which were not challenged.  Her Honour observed the witnesses to the extent that that informed the findings of fact that she made and understood the detail of the evidence, significantly in relation to the point that I have just raised, and properly assessed all of those circumstances.  It is submitted, obviously, that she found that they were exceptional and that they are exceptional, and she exercised her discretion appropriately.  Those are my submissions.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Ms Abraham.

MS ABRAHAM:   Thank you, your Honours.  In our submission, the court below correctly concluded that the trial judge had erred and correctly concluded that there was in fact no proper basis for a stay of proceedings.  Before addressing the substance of the arguments that have been put, there are four general areas that I wish to discuss that, in my submission, set the context against which this application or this appeal is to be considered.

The first might sound trite, but it is that these examinations took place pre‑charge and pre‑X7.  As I said, that might sound trite, but we are talking back in 2010, and that is relevant when one is talking about, particularly the egregiousness with which my friends have spoken about, what occurred in this particular instance. 

What we do know from the cases that have occurred since then either on the question of a stay of proceedings because of an examination it has either been unlawful or there have been unlawful dissemination, or in cases that there was an appeal against conviction, what we do know is that there were examinations that were unlawful that stays have been refused because no actual prejudice has been established, for example, Harper in the Queensland Court of Appeal, and Sander and Golding in the Queensland Court of Appeal. 

In Sander and Golding the police officers were present, a search warrant was obtained and they had been charged at the time of the examinations, but on the question that the court had to decide, that is whether in those cases they being appeal against conviction, the court was not satisfied there was a miscarriage of justice. 

On the other hand, we also know from those series of cases, including Seller and McCarthy, CB and others, and Bartlett is another example referred to in the Court of Appeal judgment at paragraph 112, there were disseminations to prosecutors and investigators of compulsory examinations.  And, again, there are a number of cases, indeed in my submission, the cases so far have spoken with one voice ultimately in respect of a stay, unless a court is satisfied that there has been actual unfairness demonstrated. 

So to suggest, as my friends have, that this is particularly egregious because police officers ended up with material they ought not or the DPP ended up with material they ought not, that, in my submission, needs to be seen in that context. 

BELL J:   If one looks at the primary judges’ conclusions, and particularly the conclusion at paragraph 880 of her reasons, it is not so much a consideration that the material was disseminated as has happened in other cases, particularly before X7, but the deliberate conduct in relation to persons true enough it is who were not charged, but who had exercised their rights to decline to speak to the police under caution.  It is that aspect which her Honour considered took the matter out of the other cases of illegality and she did comprehensively survey those ‑ ‑ ‑

MS ABRAHAM:   Your Honour, can I answer that in a number of ways and I will also come back later on and deal with it further.  In my submission, what is significant is that in paragraph 880 and, indeed, in the judgment below, her Honour did not find the examinations were unlawful or the examinations were improper and the Court of Appeal concluded that at paragraph 193 of the Court of Appeal judgment, specifically in reference to the issue of paragraph 880.

So, paragraph 193 is at appeal book 15, 4898.  In my submission, that is correct and no challenge has been made to the correctness of that.  So, while she has made these comments, there is no finding on her part about unlawfulness.

Yes, I accept, of course, that the suspects, the four particular persons involved here, were offered an interview before they were examined.  However, in my submission, if one is stepping back and saying this is a lawful examination, or assume for the moment it is a lawful examination, the fact that a person is asked, prior to giving evidence under compulsion, is asked, “Are you happy to cooperate?”, does not alter, in my submission, the propriety of the examination because the Act contemplates people likely to be charged.  It is simply a factual matter.

KIEFEL CJ:   But there is a question then of examination by whom and for what purpose?

MS ABRAHAM:   Certainly, I accept that but ‑ and I will develop it more in due course – what we are dealing with here, in my submission, is the ACC and the police genuinely believing what they were doing was lawful.

NETTLE J:   That may be so, but pardon my obtuseness, why is the last sentence of the cited passage in 192 not a finding that the examination was for an improper purpose?

MS ABRAHAM:   Because she did not find that it was an unlawful examination, which is ‑ ‑ ‑

NETTLE J:   Well, she found in terms that it was for a purpose of aiding the prosecution in a foreseen criminal proceeding.

MS ABRAHAM:   But, with respect, if it is an examination that is a special examination then, as I even understood Mr Walker to concede, then those sorts of purposes could be purposes that are properly to be put.

NETTLE J:   Well, perhaps, but this was not a special investigation.

MS ABRAHAM:   The Court of Appeal found that, yes.  I agree entirely, the Court of Appeal found that.

NETTLE J:   So in the result it is a finding that it was an examination for an improper purpose, is it not?

MS ABRAHAM:   In my submission, no, and the reason I say no is because in the Court of Appeal there had to be a ground of appeal to establish that fact, that is ‑ ‑ ‑

NETTLE J:   Whatever the legal characterisation of it, the trial judge has found facts which ineluctably yield the conclusion that it was for an improper purposes, surely.

MS ABRAHAM:   In my submission, if it was a special investigation, properly within the terms, then it could not be an unlawful purpose.  The Court of Appeal found it was not a special investigation.  Therefore, obviously, the purpose they found was improper to further the police investigation.

NETTLE J:   Thank you.

MS ABRAHAM:   As I said a moment ago, one particular importance here, in my submission, is that the police and the ACC genuinely believed what they were doing was lawful and when one is assessing that, in my submission, one looks against the background of dealing with pre‑X7 and pre‑charge.

BELL J:   The primary judge made some trenchant findings respecting the senior investigating officer who I think has been given the pseudonym “Schwartz”.  Now, I will not recite them, those were a finding short of deliberate dishonesty but they were critical findings and her Honour accepted the evidence that Mr Schwartz saw the availability of the examination room at the Commission as a place to have recourse when a person who was suspected declined under caution to answer his questions.  Now, you may say, Mr Schwartz honestly believed that that is what the law entitled him to do but it remains a significantly adverse finding from the point of view of your client.

MS ABRAHAM:   Perhaps I will jump ahead in my outline and deal now with the context in which those examinations took place.  We deal with it – it starts at paragraph 15 of our written submissions in respect to the appellant Hodges.  As your Honours can see, what had occurred was that there had been referral of the matter to the AFP.  There had been from the ACIC or the ACC an offer with a referral to use the compulsory examination procedures.

The person in charge of that process ultimately was Ms Webb, her pseudonym.  Her statement summarises the context in which the examination examinees were chosen.  Her statement is in appeal book 11, at 3685.  The portion of her statement that addresses this commences at paragraph 9, on 3687.  As your Honours can see, there were selections made in relation to who would be appropriate to examine, if anyone.  Briefing papers were compiled.  There were category A and category B, depending on what they thought in terms of the potential knowledge that a person might have given the various factors that are set out in paragraph 10.

GORDON J:   I am sorry I am being slow.  Could you explain to me why we are being taken to this material?

MS ABRAHAM:   Certainly.  Your Honour, in my submission, the impression created by the trial judge’s judgment and the argument this morning is that, in effect, these four are chosen.  They want to speak to them under caution – they want to speak to them.  Now is the time to speak to them, in effect.  So they caution them and they say no; therefore they, in effect, haul them off to the ACC.

In my submission, that is not the correct characterisation of the conduct.  Rather, what one has is ongoing discussions prior to this time after the referral of the inquiry to the AFP.  In that briefing papers were provided to the ACC in respect of certain persons.  Persons were decided to be category A or category B from the point of view of the AFP, in any event.

The AFP specifically sought advice from the ACC about the propriety of examining someone.  Was it proper to examine somebody if they are likely to be charged?  And the advice given was that they were able to do so, except if a decision had been made to charge.  That all occurred in a meeting between the police and the ACC on 1 April 2010, a summary of which appears in volume 6, at page 1800 to 1803.

Volume 6, for the Court’s information, is a summary of the evidence at first instance prepared by the prosecution, relied on at first instance and obviously in the Court of Appeal.  As your Honours will see, it sets out the evidence on the topic from the relevant persons who gave evidence.  So the advice they had was that it was only if a decision had been made to charge.

EDELMAN J:   Is this submission directed to, in effect, challenge paragraph 694 of the trial judge’s decision?

MS ABRAHAM:   Paragraph 694, in my submission, of the first instance decision, is an accurate summary of the state of the evidence in respect of the ACC investigators.  They believed it was lawful to examine, obviously pre‑charge if they had not been charged, and that section 25A(9) did not apply pre‑charge and her Honour accepts that.  So, this is directed at something different, your Honour.  What this is directed at is the AFP’s conduct and the context in which they offered the interviews, then the examinations.  So, they get advice as I said ‑ ‑ ‑

GORDON J:   I am still at a loss though, as to why this is relevant.  I mean, to take it at its height, assume for the moment that they made a mistake, we have still got to deal with the substantive issues.  I do not understand how it helps you.

MS ABRAHAM:   In my submission, what has been put by my friends is that this is egregious conduct because what the police in effect did was, they wanted to speak to these people come hell or high water, and they therefore used this procedure to enable them to do it because they had declined.  What the evidence in fact was, was that the main police officer thought the examinations were a waste of time, that they were advised if you are going to examine somebody, ask them first whether they will voluntarily participate in any conversation because, of course, there does not need to be an examination of they are going to voluntarily participate. 

What the police did is decide that in respect of those where they considered there was a risk they might be charged, so they referred to them as suspects, they cautioned them.  Others, that they did not think there was a risk, they did not caution.

EDELMAN J:   Are you asking us to make a finding of fact to that effect? 

MS ABRAHAM:   It is ‑ ‑ ‑

EDELMAN J:   There is no finding of fact to that effect that has been made by the primary judge or by the Court of Appeal.

MS ABRAHAM:   Yes, there was no finding below, I accept, and it did not arise in the Court of Appeal, in my submission.

KIEFEL CJ:   Well, the Court of Appeal did not disturb the primary judge’s findings.

MS ABRAHAM:   No, I accept that entirely.

KIEFEL CJ:   Well, that is where we are.

MS ABRAHAM:   Yes, but, in my submission, when one is looking at the character of what occurred, what is a relevant feature is the state of mind of the persons involved; that is, whether or not they intentionally did it as in knowing it was unlawful or something less.  If it was done in the genuine belief it was lawful and, in my submission, there is no finding to the contrary, and I think it was your Honour the Chief Justice put to me the findings in respect of Mr Schwartz or it might have been your Honour Justice Bell, there was no finding to the contrary, he genuinely believed that what he was doing was lawful and that is a relevant fact.

KIEFEL CJ:   Well, you are proceeding then on the basis that there is no finding.  You are saying that the primary judge’s findings are limited.  That is a bit different from asking us to revisit the question and make findings around what is said, so we will limit it to that basis.

MS ABRAHAM:   Yes, thank you, your Honour.  What is also, in my submission, again contextual is it is obvious it was not just these four appellants who were spoken to.  There were ultimately I think 15 people that were spoken to, two of whom the evidence reflects were referred to as suspects as well, but they were never charged because ultimately there was insufficient evidence.  That, in my submission, is relevant to suggestions of, if you are a suspect, there is imminent charges.  In effect, that is what was occurring here.  I have strayed a little from the order in which I had proposed to speak but in a nutshell in respect of that is the fourth preliminary or contextual matter, that is, there is no finding in respect to Sage and we say also the police about improper ‑ ‑ ‑

KIEFEL CJ:   The primary judge’s finding was that he was reckless.

MS ABRAHAM:   But the Court of Appeal overturned that though.

KIEFEL CJ:   Yes, but the primary judge – it is said here that the Court of Appeal had no basis for doing that.  That is an area for discussion perhaps.

MS ABRAHAM:   I will discuss that in a moment, your Honour, but what is not challenged is her Honour made a finding that he was honest and what was not challenged was that there was no evidence of an awareness on the part of Sage of any illegality.  He genuinely believed it was lawful, and it was on that basis that the court concluded there was no evidence for a finding of recklessness.  And, whilst my friend has taken your Honours to all those passages in the first instance judgment today, there has been no challenge to the Court of Appeal’s comments about that being the state of the evidence.  Indeed, that is the state of the evidence at first instance.

That, in my submission, is relevant because apart from anything else – again jumping ahead just a little – at first instance the appellants contended or accepted that to achieve such an extreme result as a stay of proceedings in this case that one would need “a finding of recklessness or intentional illegality” as a requirement “rather than negligence”.  That is referred to in our footnote 69 of our submissions in respect of Mr Hodges.  That was a submission made below at appeal book 4, 1381 at first instance.

KEANE J:   But even if you have not got a finding using a pejorative adjective like “recklessness” or “reckless”, if what you have got are findings that establish that the examination proceeded without regard to the limitations built in by the statute to the procedure, would that not be enough as a basis for a stay if relevantly one could infer irremediable prejudice?

MS ABRAHAM:   In my submission, not if there is no – yes, you need irremediable prejudice – that is what we do not have here – but, in my submission, no, that would not be sufficient.

KEANE J:   But if you have got a statutory procedure the Parliament has laid down for getting information that would otherwise not be available to the prosecution and the person who is responsible for overseeing the operation of that procedure simply fails to have regard to the requirements of the procedure and as a result the procedure is not followed, why is not the circumstance that one then has a product of the examination which is available to the prosecution which the Parliament intended should not be available to the prosecution?

MS ABRAHAM:   Yes, I accept it would be available to the prosecution, but the evidence here that his Honour Justice Edelman took me to a moment ago is that they actually believed it was lawful to do it pre‑charge.

KEANE J:   Yes.  I can understand you want to say that they believed it was lawful, you are fighting an argument that says they acted recklessly, but if you put the pejorative or exculpatory adjectives aside and just look at what happened and compare it to what the procedure requires, the procedure was not observed.  The requirements of section 25A were not observed.

MS ABRAHAM:   I accept on the findings that 25A(9) was not observed.  I know your Honour has said that going to the fact they believed it was lawful is not, in some senses, an answer, but, with respect, it was not observed because they thought it was necessary, because pre‑charge they believed it was lawful.

GORDON J:   They may have believed it was lawful, but the statute had a regime in place which started with a determination, went to a summons, went to all these steps, and the fact of the matter is it seems, at least at first blush, some of them were not followed.  It does not matter whether they thought it was lawful, whether they thought they were doing the right thing or not, does it?

MS ABRAHAM:   I accept what your Honour says, with the exception of the last part.  On the question of a stay, in my submission, it is relevant.  One needs to consider cases like Moti, where this Court said that the unlawful conduct by itself was a necessary but not necessarily sufficient step to warrant a stay of proceedings.

EDELMAN J:   But why could it not be said that, where the unlawful conduct is one of the very core things that the statute is directed to, then to allow that object to be achieved when the very statute is designed to prevent that would be effectively to stultify the operation of the statute?

MS ABRAHAM:   With respect, your Honour, there are two answers to that.  First of all, the object was not achieved, according to the Court of Appeal judgment.

NETTLE J:   This is paragraph 299 of the judgment.

MS ABRAHAM:   The object was not achieved because there was no advantage – no forensic advantage or forensic disadvantage.

NETTLE J:   Put that on hold.  What is the second part of the question?

MS ABRAHAM:   I have forgotten the other part of the question.  I am sorry, could your Honour repeat it?

EDELMAN J:   Why is it not sufficient for a stay if the very object that the statute prohibits is the very thing that is designed to be achieved and is achieved?

MS ABRAHAM:   Because, in my submission, a stay is not about punishment.  A stay is about looking at the court processes and being abused.  They said, “Put to one side, we do not accept and the Court of Appeal did not accept there was any purpose achieved, forensic advantage and the like”.

GORDON J:   Yes, but the answer to the stay cannot be “we thought we were acting lawfully but we were not”.  The question of the stay is:  is this person going to get a fair trial – and all the discretionary matters and considerations that Justice Hollingworth took into account.  I still do not understand how this lawful versus “I thought it was – maybe I am in the ballpark” helps you.  It is not a complete answer.  You accept that.

MS ABRAHAM:   In my submission, the test for a stay requires more than simple unlawfulness.  One needs to look at the consequences of that unlawfulness on any trial that is to occur because it needs to result in that it would be an unfair trial such that nothing can be done to remedy the situation and, on the balancing exercise, that the matter ought to be stayed.

KIEFEL CJ:   Do you look at the extent of the divergence from the process required by the statute?  Is that relevant?

MS ABRAHAM:   In my submission, if one is looking at – if there is unlawful conduct, one would be entitled to look at ‑ ‑ ‑

KIEFEL CJ:   Well, there is unlawful conduct and there is unlawful conduct.  The extent of the divergence – what her Honour was I think conveying by the word “reckless” was that regard was simply not had even to the language of the statute, which says “may be charged”.  It is a point her Honour made.  I mean, it was completely disregarded.  Now, complete disregard – as Justice Keane says, “Put the adjectives to one side,” but I think the point her Honour was trying to make was that there was really a substantial disregard for statutory process. 

Now, to what extent does the degree of that divergence from process and a failure to attend to it – a failure to even attempt to see what the processes required – does that inform the Court when it comes to determine whether or not the processes of the Court should be lent to the further prosecution of this matter?

MS ABRAHAM:   In my submission, I would be hard‑pressed to suggest that one could not look at the nature of whatever the illegality is said to be in any particular case.  But, in my submission, that is not the be‑all and end‑all; quite to the contrary.  In my submission, when one is looking at the rationale behind a stay – and a stay is not about punishment – it is relevant what the state of mind of the persons involved is.  And in 2010, pre‑X7, where transcripts clearly were disseminated to authorities, this is what occurred in this particular case, in a context where the relevant persons believed that that provision did not apply to pre‑charge.

KIEFEL CJ:   True it is that the – it may well be a clear case where the courts will not lend their processes to knowingly unlawful, deliberately unlawful actions, but that is not the whole of the story.  There must be questions of degree involved here.

MS ABRAHAM:   In my submission, one is not in the knowingly unlawful territory here at all.

KIEFEL CJ:   You have made that point; there is no finding to that effect.

MS ABRAHAM:   And, we would say, not even in the reckless territory.  But, in my submission, that is also not sufficient.  One also, because it is an application for a stay, must consider the consequences of this conduct.  What, if any, effect has it had or would it have on the trial?  Not could it have, would it have?  We are talking about a documentary brief of evidence.  The probative value of the documents do not rely at all on any examination.  We are talking about no use or no material use being made in respect to the examinations.

KIEFEL CJ:   How can you quarantine every person who had access to the answers as given and recorded from the prosecution?  Does not the Court need to be confident that that can be achieved before it can say – put aside the questions of onus, it is really a question about whether the trial process is going to be one that the criminal law requires.  Does not the Court have to be satisfied that there can be that level of quarantine?

MS ABRAHAM:   In my submission, I agree with your Honour that one needs to look to see what it is that the - will the remedy achieve, what sort, but here it is not simply a question of quarantining because the court found the – no use was made of the material in effect.  In other words there was nothing in it that was used.  So that in those circumstances that feeds in with respect to the ‑ ‑ ‑

KIEFEL CJ:   Except they gave their accounts under coercion and what they could or could not say at trial and whether they could have the choice of giving evidence may be affected by this.  These were the matters discussed in Lee (No 2). 

MS ABRAHAM:   They were.  Your Honour, again this case and the submissions have been made at first instance and today at a level of generality which in my submission does not withstand scrutiny.  Can I give your Honour an example?  This morning my friend stood up and said that there are lots of police officers involved in hearing or having access to this material and, indeed, that we now know, he says, there are many more that have had access to the material. 

He is referring in that submission to his written submissions at paragraph 83, that is, he is referring to an email that arose after these proceedings in respect of the order of the court in terms of undertakings of police enjoining them from speaking about the material that they had heard in examinations. 

Now, two things about that:  one is not evidence before the court.  Two, we have filed an affidavit that puts on the next email which explains those – sorry, that submission.  So we say there is no evidentiary basis before the Court, this being a court of error.  The Court does not have power to receive, in effect, fresh evidence.  If it is not fresh evidence then, in my submission, the – we read the affidavit filed in the Court which explains that very thing. 

The importance of that, the reason I am raising it, your Honour, is my friend made the submissions all these people and many of them are going to give evidence.  What is obvious as a result of the order of the Court of Appeal is that more than 20 of them have never had anything to do with the transcript.  They have all signed undertakings not to talk to any of the current prosecution team who are a fresh team, in effect. 

What it does do is show that if one looks at generalities, namely this number had access, that actually tells us nothing because that tells us – does not tell us what if anything they did with it, whether they are involved in the trial, are they going to give evidence, et cetera, et cetera. 

NETTLE J:   Would you not assume in the absence of evidence to the contrary that they would disseminate it throughout the organisation by which they are employed for the purpose for which it was obtained, namely to evade the prosecution of these men. 

MS ABRAHAM:   If your Honour is taken to mean a breadth, I am not quite sure how far your Honour means in terms of the breadth of dissemination.

NETTLE J:   Well, I had understood your submission to be there is no evidence of any dissemination beyond the nine people who sat in the glassed window listening to the interview and therefore no reason to think that it would be used by a new prosecution team against the accused. 

MS ABRAHAM:   Sorry, if your Honour took that from what I was saying, that was not what I was saying.  What I was saying is you cannot, with respect, bandy around numbers, which my friend has done and what continues to be done in terms of this unscrambling of the egg, without looking at what the individuals did in respect to the matter and what, if any, involvement they have in later prosecutions, et cetera, et cetera. 

Given the court below found that there was no use made by any of those who gave evidence or provided witness statements and, indeed, there was not even an attempt to establish any use made by them, in my submission, an order enjoining the police from saying what was in the examinations to the new prosecution team will satisfy the ‑ ‑ ‑

KIEFEL CJ:   But the investigating team will be talking to the prosecution team.  How can one infer that there is not going to be an occasion if one of the accused gives evidence?

MS ABRAHAM:   I think, with respect, your Honours are assuming there is a lot more in these examinations than there actually are, to be perfectly blunt.  Can I give your Honour an example?  It is said by all four of them, all four appellants, regardless of whether they have made any admissions, not made any admissions, said something that might be seen to be an admission, that their trial ought to be stayed.  As was obvious from some submissions made this morning on behalf of Mr Galloway there are instances where there have been voluntary disclosures of this same information.  There have also been ‑ ‑ ‑

KIEFEL CJ:   Without knowledge that investigators had already heard what he had first said under coercion?  Is that correct?

MS ABRAHAM:   I know that was my friend’s submission this morning but what one has on his part is an - some months later he agrees to questioning voluntarily under caution, gives what is accepted in the voir dire hearing or before the trial judge, in effect the same account.  There is no evidence before the court, as was found below, no evidence that that is in any way affected by the examinations.

When it comes to the committal proceedings the voluntary conversation no doubt was relied on but as was said this morning in respect to Mr Galloway, he did more than that, he positively relied on the evidence under compulsion and that, in my submission, is important because what occurred was not only putting into the public domain that information, this included prosecutors who did not know the contents of the examination. 

What it does reflect also is that - and I will give your Honour the page reference where that is done, because what is clear is that he is asking Mr Schwartz, were you present at the examination?  No.  Have you read the summary?  No.  Have you read the transcript?  No.  Mr Schwartz said, I think I was briefed at the time. 

So here is a police officer who despite the fact he was the head of the operation, so to speak, had not read any of that sort of material probably because in his evidence he said the examinations were a waste of time.

BELL J:   It was Mr Schwartz who said that he was the person responsible for determining who would be examined and not the examiner and he said he – he made that determination by reference to the view that the coercive powers of the ACC should be used to force people to answer questions if they had declined.

MS ABRAHAM:   Your Honour, I accept what he said in evidence, but he understood it was permissible based on the advice he was given by the ACIC to examine people who are suspects.

BELL J:   But the finding of the primary judge at paragraph 449 is somewhat more trenchant than that.  To use the pseudonym, Schwartz:

said he had decided that if the ACC accused would not voluntarily answer AFP questions, he would take advantage of the coercive powers of the ACC to force them to answer questions.

Now, combine that with her Honour’s earlier acceptance of Mr Schwartz’s evidence that he was the person who made the decision as to who would be examined by the ACC and not the ACC examiner it is not really a complete answer to say the officer in charge did not think these examinations were of any utility.

MS ABRAHAM:   Your Honour, it depends which aspect you are looking at, with respect.  If what one is looking at is in hindsight should this have occurred, the Court of Appeal has said no, it should not have.  It was improper.  It was not a special investigation.  There should have been these non‑publication orders, non‑dissemination orders in place – it should not have occurred.  That is one thing.  That, in my submission, alone is not enough.  One needs to look at the consequence.

EDELMAN J:   But why?  You accept on the construction of 25A, do you, that 25A does not require you to look at the consequences – 25A(9)?

MS ABRAHAM:   I accept that, yes.

EDELMAN J:   It is concerned with what might happen.

MS ABRAHAM:   Yes.

EDELMAN J:   So why is it not sufficient for a stay then that if – and I realise this is disputed – but if on the proper characterisation of the facts and the findings the Commission had engaged in examinations which were designed to defeat the very purpose of the statutory provision, why does it really matter then what the consequences were?

MS ABRAHAM:   Because for a stay – this Court has - it is such an extreme remedy, it is stopping an otherwise properly instituted prosecution.  It has to be “would be unfair and nothing could be done” and one does the balancing exercise.  So if there are no unfair consequences, with respect – and a stay is not about punishment ‑ how is it that it is in the interests of the administration of justice when they believed it was lawful to stop an otherwise proper prosecution where the case depends on documents and not at all on anything - the probative value of which is not dependent on anything in respect to the examinations.  It is changing.  It is “could” or “may” in subsection (9).  By the time you get to a stay it is “would” ‑ “would”, not “could”.

BELL J:   Save that it is a stay, because to not stay would see the processes of the court abused and in this context if the court is unable to ensure a trial that is not unfair that is one recognised form of abuse.  The other is the conduct of proceedings that would impair the integrity of the administration of justice.  On a view, her Honour’s conclusions at 879, 880 and 881 are conclusions that tend to support her view that the administration of justice would be brought into disrepute if those responsible for the enforcement of the law could conduct themselves in the way that her Honour found they did to obtain the forensic advantage to the prosecution and disadvantage to the accused.  Now, that aspect of an abuse of process does not depend upon the question of whether or not one could immunise the trial from unfairness.  It is a question of the broader interests of the administration of justice.

MS ABRAHAM:   It is more the Moti topic that your Honour is talking about.

BELL J:   Yes.

MS ABRAHAM:   But even in Moti, with respect, one looks to the consequences because in Moti nothing could be done because he was in the country.  He ought not to have been in the country.  It was unlawful but, as the Court said, that was not enough.  It looked at what the authorities did.  What the authorities did – they did it, knowing it was unlawful and that is the element, with respect, that is missing here.  This was not done knowing it was unlawful.  Quite to the contrary, it was done believing it was lawful because otherwise, in my submission, it does become a question of punishment. 

But the prosecution has these documents – and I will give your Honours some references in a moment – before any of these examinations.  It is accepted that there is nothing in the brief that depends for its probative value on anything in the examinations.  While her Honour talks about an improper purpose the findings were, ultimately, by the Court of Appeal, that that was not achieved in any event.  If that was to be the purpose, it did not work.  It was not achieved.

GAGELER J:   Can I just unpack the last sentence of paragraph 880?  When her Honour refers to a disadvantage to the accused and the advantage to the prosecution her Honour, I think, is referring to what she says at the end of paragraph 846:

First, it is clear that the AFP wanted to lock them into a version of events on oath . . . Secondly, it would assist the AFP to know what to look for in assembling briefs -

Is that all her Honour is referring to or is there more?

MS ABRAHAM:   I had assumed it was that.

GAGELER J:   All right.  So my question is:  if there had been a lawful determination, were those purposes in themselves impermissible purposes within the scheme of the Act?

MS ABRAHAM:   No.

GAGELER J:   All right.  So what made them – all right.  Thank you, that is enough.

MS ABRAHAM:   What makes them improper is because the Court of Appeal has said that it was not a special investigation.

GAGELER J:   It is a misuse of the term “improper purpose” in an administrative law sense, because it is not a purpose extrinsic to the statutory scheme, it is simply a purpose that could not be achieved in the absence of a lawful determination.

MS ABRAHAM:   In our submission, that is right.  What one is looking at when one is – because there has been a lot of talk about purpose in the submissions and at first instance.  When one is judging that, one is doing it against – assuming it was, for example – a proper special investigation, which is the question your Honour asked. 

There is a case actually on locking in and being said to be – Seller and McCarthy deals with locking in - the first of Seller and McCarthy 89 NSWLR 155 at 223 and 224. There, the respondents, Seller and McCarthy, had been questioned numerous times pre charge. One of the arguments was that it was improper because the purpose of, particularly the last one, was to lock them into a version of events. The court held:

If the examination of the respondents was carried out for another purpose other than an investigation into those schemes it would amount to an abuse of power. 

That is fine.

However, even if the purpose was to lock the respondents into a story and test inconsistency, it does not seem to me that that was necessarily inconsistent with investigating the schemes and the respondents’ role in them.  One aspect of the investigation –

et cetera.  I draw your Honours’ attention to 223 and 224.

BELL J:   The primary judge distinguished, I think, Sellers from the present case.  If one turns to her findings at 846, the finding that the AFP wanted to lock them into a version of events on oath to prevent them providing an alternative version at their trial is difficult to understand in the context of a proper use of the examination power.

It may be accepted that the statute contemplates that persons may be obliged to answer questions and, indeed, it may be that persons who are suspected of criminal activity are obliged to answer questions.  It is to that end that the statute strikes the balance by the provision of subsection (9), the purpose of which, one would understand, is to prevent the prosecution from having, as it were, an advantage of knowing what an accused’s account might be. 

That is quite distinct from the proper investigative role of the Commission in inquiring into aspects of crime.  But how can it be consistent with the proper exercise of the examination power under 25A to have the determination that a particular suspect will be interviewed made by the AFP officer and not the examiner for the purpose, that is conceded, to lock that person into an account to prevent them giving a different account at the trial?  All of that is directed to forensic considerations about the conduct of the prosecution and an advantage to the prosecution, quite distinct from the proper conduct of the investigation.

MS ABRAHAM:   Your Honour, while Mr Schwartz considered it was his role to determine who would be examined, it was obviously the examiner’s role ultimately because he had the job – he had to authorise it.  He had to satisfy himself of certain criteria.  So whatever Mr Schwartz might have thought about his role, in my submission, does not advance it.

In terms of a conceded purpose to lock it in, the evidence in fact in respect to Mr Schwartz, was that was a consequence.  It was one of the recognised consequences of compulsory examinations and, indeed, her Honour recognised that it is a corollary, that there is a potential for that if there is an examination. 

The actual purpose, the reason that the examinations were undertaken is talked about by both he and Ms Webb, the person in charge who is responsible for preparing the material in relation to the examinations.  The purpose was to determine whether or not – what knowledge these people had in respect of the investigation of the alleged defendant. 

NETTLE J:   But we can act on the findings of 846, can we not? 

MS ABRAHAM:   It is inconsistent with the evidence. 

NETTLE J:   It is inconsistent ‑ ‑ ‑

MS ABRAHAM:   It is inconsistent with the evidence. 

NETTLE J:   So where does that leave us?  What do you say about it?  What is the submission? 

MS ABRAHAM:   My submission is that it is inconsistent with the evidence and ought not be acted on.  I know that it was not challenged below but there is nothing – the locking in aspect does not advance, in my submission, the proper purpose or improper purpose because if ‑ ‑ ‑

NETTLE J:   Well, that is a different point.  Can we act on the findings by the primary judge if the purposes of Schwartz were as there stated? 

MS ABRAHAM:   It is her Honour’s findings and they were not challenged.  It is not the evidence. 

NETTLE J:   Thank you.

BELL J:   At 407 her Honour records Mr Schwartz’s agreement that one of the advantages of ACC examinations was that a suspect can be locked in ‑ ‑ ‑

MS ABRAHAM:   Absolutely.  That was the evidence.  Your Honour, the evidence of [Schwartz], he was asked some general questions about the benefits of compulsory examinations and he was upfront and said one of the benefits, and it was put to him by the cross‑examiner, he said one of the benefits was that a person potentially could be locked in.  That is in appeal book 4, 1286.  It was not then put to him and that is why you chose to do that here. 

NETTLE J:   The judge appears to have inferred that was the case. 

MS ABRAHAM:   That is where it must have come from.  The evidence as to purpose, however, is in the documents.  They wanted to know what it was that these people knew. 

NETTLE J:   Well, the direct evidence was.  The inferential evidence appears to have presented itself to her Honour as it appears at 846. 

MS ABRAHAM:   The problem with that is, if what the AFP were doing was going about saying that we want to lock these people in, they stopped the Hodges examination when they decided that they found some evidence that he was likely to be charged.  So despite the fact the ACIC said that it was perfectly proper to examine, they stopped that and they did not refer the two main suspects to the ACIC for examination.

KIEFEL CJ:   They might have achieved their objective by the time they decided to charge them, of course.

MS ABRAHAM:   Sorry, your Honour.

KIEFEL CJ:   They may have achieved the advantage referred to locking in by the time they decided to charge. 

MS ABRAHAM:   Sorry, by the time they decided to charge or to stop the ‑ ‑ ‑

KIEFEL CJ:   Well, the examination was stopped when charges were imminent.

MS ABRAHAM:   No, no, not imminent, with respect.  When they had found some material, some further documentary material, where they thought he was likely to be charged - he was not charged for another 12 months.

KIEFEL CJ:   Yes, that is right.

MS ABRAHAM:   Yes.

KIEFEL CJ:   That he may be charged, yes.

MS ABRAHAM:   The two main suspects, […] and […] were never - the AFP, despite the advice they had that they were able to examine for those - if you are not charged, they took what they considered to be the cautious view and if it was thought likely to be charged they were not examined. 

KIEFEL CJ:   It is interesting that they, at that point, turned their mind to likely to be charged - that the, I suppose, examiner however did not at an earlier point.

MS ABRAHAM:   Well, with respect, I am not quite sure that that is ‑ ‑ ‑

KIEFEL CJ:   Different people perhaps.

MS ABRAHAM:   It is not, I do not think that Mr Sage did not think they were likely to be charged necessarily.  Mr Sage’s view is that it was lawful because it did not apply pre‑charge.

KIEFEL CJ:   Well, he did not appear to turn his mind to it but anyway we are going over ground I think we have well tilled.

MS ABRAHAM:   Yes, but, with respect, I think that is where there is, in some senses, an inconsistency within the judgment about that because throughout, that is what their view had been.  Her Honour was of the view that they ought to have known that an order was required but that is different in my submission.

KIEFEL CJ:   Ms Abraham, do you go so far as to say that there could be no forensic advantage arising out of the examinations and the records of them?

MS ABRAHAM:   In this case?

KIEFEL CJ:   Yes.

MS ABRAHAM:   The court phrase is that no material advantage because the only use - …..is the refine and guide answer.

EDELMAN J:   You say there could be no forensic disadvantage at all.

MS ABRAHAM:   No, there was no ‑ ‑ ‑

EDELMAN J:   There is no prospect of a forensic advantage.

MS ABRAHAM:   No, no, there was no forensic advantage.  The only part that the Court of Appeal talked about was the, as I said, the refine and guide in terms of the search of the material they already had, that is, that is not finding additional information and ‑ ‑ ‑

BELL J:   There was some suggestion, I think, that the documentary material on the police database was some 4 million documents or something of that character.

MS ABRAHAM:   I do not how many, lots of millions.

BELL J:   In any event, what do you say was the evidence as to the extent, if any, of the usefulness of the material obtained in the examinations to ascertaining out of that large number of documents those that would be of assistance in the prosecution?

MS ABRAHAM:   Your Honour, it was referred to in the Court of Appeal judgment at 266, page 4924, that is the guiding and refining.  That comes from two questions and answers that appear at appeal book 4, 1289.  It starts about line 11.  There was no follow up.  There were no questions about use.  That was the point, in my submission, of the Court of Appeal’s dissension into detail as to the conduct of the matter below.

Your Honours, at first instance there was I believe something like 30 days’ worth of evidence.  There was then a good deal of submissions and obviously many, many exhibits.  Until the appellants stood up to make final submissions the issue of the use really in practical terms was not really an issue.

GORDON J:   Is that what 269 of the Court of Appeal judgment reflects on the fact that these people were cross‑examined about this issue?

MS ABRAHAM:   Yes, and it was conceded below – and we have the references in our submissions – by Mr Walker that the appellants did not seek to set out to prove the use.  It was a forensic choice and it had to be, with respect, because up until the time they stood up to address the whole argument was based on the fact of how much evidence the Crown had in fact ‑ ‑ ‑

EDELMAN J:   But how could they have ever proved it?  How could it be proved, for example, what would have been done with between 20 and 80 million documents but for the examinations?  Would the question be how would you have conducted a process to sift through 80 million documents?

MS ABRAHAM:   No.  In my submission, what you would have done is what the Court of Appeal postulates as various steps.  You would have asked the witnesses who gave evidence in their statements that there was no use of the document – you would ask them about it, “Well, did you use it for this?  Did you use it for that?”  You would tender the spreadsheet which was – there is a spreadsheet of all the search terms, all the searches conducted and the like.  My friends had that.  They did not tender it. 

They could have put it before someone and said “Well, hold on a second, didn’t this come from my client?  Didn’t this come from my client?”  None of it happened.  Not only it did not happen, there was just no attempt.  That was contrary to their case that – I think, for example, in respect of Mr Tucker, Mr Tehan kept saying it was overwhelming, you had everything you needed by the time of the examination.  That was their whole argument.

GORDON J:   Can I just ask, just to put this into some sort of context, at paragraph 81 of Hodges’ submissions to this Court there is set out – and I forgot to ask Mr Walker this question – a concession that is made by the Director.  It is at the foot of page 15 of Hodges’ submissions.  Is that an accurate summary?

MS ABRAHAM:   No, and we deal with that in paragraph – my learned junior will get me the paragraph reference.  What had occurred is that pre the beginning of the voir dire the DPP was attempting to make an effort to avoid having to insulate or burn the particular prosecution team because as soon as they gave them the transcripts a decision was made that they were not going to do the trial.  So, in an attempt to avoid that it was suggested perhaps we could approach it on this basis.

That was rejected and the Crown fought throughout that there was no use – and, indeed, in my submission, in paragraph 56 of our submissions in respect of the appellant Hodges it was suggested – or it was raised in the Court of Appeal when Mr Walker was on his feet and he disavowed that that was the reason why they did not pursue – he said he could not advance that as the reason.  And, with respect, one could not.  I mean, the bottom line is, as the Court of Appeal says, to have run the argument they ultimately ran would be counter to what they were trying to establish.

The court summarises the evidence and the lack of examination, or rather cross‑examination in respect of the evidence, as the court points out in 120 pages of written submissions, there were two lines that related to potential use at the first instance.

So it was not only that they did not, with respect, undertake the task, but it was conceded that they had all the material that would have been necessary to attempt the task and they did not.  It was a forensic choice, in effect, not to do it.

On that topic, or related to that topic, there was also a concession below that the finding of impossibility by the trial judge was not supported by the evidence.  That appears in appeal book 11, at 4714, where Mr Walker accepted that there is nothing that justified the word “impossibility” or “practical impossibility” and he accepted that, really, one would need to have done something to demonstrate that – that is, attempt to do it, to demonstrate that you could not do it.

BELL J:   Could you just give me that page number again?

MS ABRAHAM:   Certainly.  Appeal book 11, 4714.

BELL J:   Thank you.

NETTLE J:   I do not think so; not in 11.

GORDON J:   I think it is 14.

MS ABRAHAM:   I apologise.  And, with respect, that makes sense because it was never attempted.  If it has not even been attempted, how could one suggest that it is impossible.  It was never attempted out of a forensic choice.  And there is no doubt that the fact of impossibility was critical, in my submission, to the reasoning of her Honour.  The Court of Appeal addresses that at 257, appeal book 4921.

Ultimately, the court concluded – it goes over to 271, 272 – that what one is dealing with is the basis of the stay made by her Honour was on a basis not argued below, of which there was no evidence, not suggested by the appellants below in a context where there is a concession that impossibility ‑ there is no evidential basis for that.  That, in my submission, clearly demonstrates there is an error in those findings.

One needs, with respect, in my submission, to keep that in mind when my friend made the submissions today, he reverted, with respect, back to some earlier submissions he had made in the Court of Appeal and talked about generality:  “It was used for this, it was used for that”.  That is not the finding of the Court of Appeal after clearly a thorough examination of the evidence.

The reference today by my friend to, I think he said, a standard clause in the statements.  Again, the Court of Appeal, when they set out the course of the application, beginning at 232, explains why the statements were in the form they were, having, obviously, gone back and looked at the statements.  It is because it was not an issue in the way ultimately it was found by the trial judge.

NETTLE J:   Ms Abraham, at 4722, Mr Walker submits to President Maxwell that, despite the fact that the sorts of questions to which you referred were not asked of the witnesses, it was still open to the trial judge to draw the inference that she did, that the purposes of the examination, or the improper purposes that she identified or ascribes to Mr Schwartz.  I am talking about page 4722, lines 12 to 15.  It is really a similar point to one I put to you a little earlier, that, despite there not being direct evidence there was sufficient direct evidence from which the judge could draw the inference that she did as to the improper purposes and advantages obtained.  Is that not right or is it wrong?

MS ABRAHAM:   In my submission, it is wrong.

NETTLE J:   Because?

MS ABRAHAM:   The evidence was unchallenged, that the material was not used.

NETTLE J:   You are talking about the pro forma passages in the affidavits to which Mr Walker referred this morning?

MS ABRAHAM:   I am talking about the passages in the affidavits.  In my submission, they are not pro forma; they were to address specific questions as a result of the orders of the court.

NETTLE J:   I will rephrase it:  the remarkably similar passages in each of the affidavits.

MS ABRAHAM:   And the oral evidence of the witnesses who said –Ms Webb, for example – that they got nothing out of it.  Schwartz said that they got nothing out of it; the best we got is refine and guide, with no follow‑up questions whatsoever.  The court quite properly said, how can you reject that evidence, it never having been challenged, to then not only reject it but find the opposite?

KIEFEL CJ:   When you say “got nothing out of it”, does that mean in an investigative sense, to take them any further than they got, or does it mean to cover the whole of the universe of what could happen at a trial?  Are we to interpret these things?

MS ABRAHAM:   It was a very broad statement I made.  From the police point of view, it did not assist them.  They did not use it in their investigation.

KIEFEL CJ:   That does not say much about the trial then, does it?

MS ABRAHAM:   No, but with respect, given the brief is – the reason it was no use is because, with respect, as I said, there was nothing in them.

KIEFEL CJ:   But it is the accounts they gave.  Did not her Honour the primary judge make – whilst there is perhaps more inferential and general findings, say at page 2341, paragraphs 747 and 748, for example, her Honour makes more specific findings with respect to two of the examinees, at 726, 727, 739 and 740. 

MS ABRAHAM:   I am sorry, your Honour, I missed that.  Are those passages – 241?

KIEFEL CJ:   Yes, I am sorry.  I started with 2341, paragraphs 747 and 748, which are the more general inferential finding based upon his having lost the right to put the prosecution at proof, but more specifically at page 2339, paragraphs 739 and 740, and then 2337, paragraphs 726 and 727.  Are they not more specific findings about what the position they were in as a result of their accounts?

MS ABRAHAM:   They are, but that is where, in my submission, one is in the realms of “could” and not “would’ and I will use Galloway as an example.  That is the passages at 747 that your Honour mentioned. 

Now, in respect to Mr Galloway, of course, he is the one that had – he was only shown five documents for a start as opposed to many documents.  He is the one that gave a voluntary interview some months later and then the counsel in the committal introduced the compulsory examination into evidence.  That is one of the points I made earlier.  And in doing that, in my submission, provided to the police officer, Mr Schwartz, a copy of the transcript he had never read before and had him read parts of the transcript. 

So, in my submission, when one is talking about him as an example, one has voluntary disclosures.  The information is known to the authorities through other sources.  He has demonstrated conduct which by putting into the hands of the police, no concern that the police would have and be aware of the contents of his transcript, the police officer saying he had never read it before.  But in one sense more fundamentally than that, there is no evidence that that is not his defence. 

KIEFEL CJ:   What about more specific examples, her Honour gives with respect to the two other examinees at the passages I mentioned?

MS ABRAHAM:   I am afraid I did not write down those paragraph numbers.  Sorry, your Honour. 

KIEFEL CJ:   725 and 726, 739 and 740. 

GORDON J:   Just before you leave Galloway.  I mean, that is not the complete story, is it, because her Honour records at 761 that what Mr Galloway was not told was that when he has his record of interview, the person who is conducting it is someone who sat and watched his examination. 

MS ABRAHAM:   But there is no evidence, with respect, that that in any way affected the interview. 

EDELMAN J:   Except for 788 and 789. 

MS ABRAHAM:   That, with respect, is not on the topic of this particular question that I was asked a moment ago.  There is no evidence about that and, in my submission ‑ ‑ ‑

GORDON J:   There is no evidence about – there is evidence about the fact that the person who conducted the record of interview was one sitting behind the glass in the – during the examination.

MS ABRAHAM:   But it did not – there is no evidence that it had an effect on the questioning, and given that ‑ ‑ ‑

GORDON J:   How do we know that?

MS ABRAHAM:   We ask, with respect.  A stay involves placing – the cases talk about a heavy evidential onus on the applicant for a stay to establish the basis for a stay and that one – the factual basis and that one is needed.  In my submission, if ‑ and the question I was being asked a moment ago related to the forensic constraint ‑ if his defence is in fact this, and there is no evidence to the contrary, how is there a forensic constraint? 

It is one thing for my friend, Mr Walker, to say this morning, well, it is possible somebody could do this or somebody could do this or somebody could do that.  There is no evidence.  And it is not “could”, it is “would”, in my submission, and this is in a context where the prosecutors that were conducting the voir dire are not to be trial prosecutors and in a context also where on typical voir dire for a stay or getting evidence excluded, for example, because it is like a confession, an accused may need to give evidence to provide the evidentiary foundation. 

Your Honour, there is one other matter about your Honour Justice Gordon’s question.  Not only did it not appear to be a concern, if my friend – there is no suggestion by my friend, although he could do it in due course – there is no application to exclude the record of interview or anything like that.  That is a potential remedy if the suggestion is it has somehow been affected because somebody that was behind a screen was involved.

GAGELER J:   I might be unduly simplistic about this but as I read the notices of appeal there is no challenge to the findings of the Court of Appeal about the effect of the examinations.  The sole ground of appeal is that the finding of purpose was enough to justify the grant of a permanent stay, the purpose being compendiously those two identified purposes in paragraph 846 of the trial judge’s judgment.

MS ABRAHAM:   Yes, and my learned junior reminds me that the person who was behind the screen, I think his pseudonym is Singleton, said he did not get anything out of the examination.  Can I answer your Honour the Chief Justice’s question?  I think I might have missed one somewhere over there but the – so those two areas of summary at 725 and 726.

Your Honours, in respect to Mr Hodges, the examination – he was asked about one document and one document only and that is what has been known as the […] fax.  The question on that begins at page 51 of a 70‑page examination and, your Honours, a proper reading of those remaining pages before the examination concluded was not “I was party to a conspiracy to do” – there was no admission to be party to anything knowingly. 

In respect of Mr Hodges – in the committal proceedings, Mr Hodges ran a very active defence.  In appeal book 6 at I think page 2002 - that is the summary book - so at 2002 begins the summary of the voluntary statements.  In respect of the committal proceedings for Mr Hodges, the committals by the way in combination between the two took over 100 days, so there was active cross‑examination and arguments about the inferences to be drawn from any of the documents.

The […] fax, the one document he was shown is talked about in paragraph 212 and as is obvious from the next page and a half there was a submission put about the interpretation of that […] fax being the only document and interestingly all four succeeded in their no case submissions arguing the interpretations of the documents before the learned magistrate. 

Now, in respect to […], there were direct indictments, ex officio.  Other charges were not necessarily laid or re-laid.  So, with respect, there is no evidence that he has been hindered.  In fact the conduct of the matter belies the suggestion that they have been, with respect. 

In respect to Mr Hodges as well the examination was stopped, as I said, shortly after the […] fax was shown.  In the intervening period before it was to commence again, which was I believe about a month’s time, further examination of the computers revealed some material which I mentioned before, that indicated to the police in any event that they thought he was likely to be charged at some stage and so they viewed the examination ought stop.

But there were negotiations and discussions between his lawyers and the AFP and the Commonwealth Director of Public Prosecutions after the examinations, which are set out in brief form at page 2003 of that appeal book and in those discussions what was being talked about was the possibility of a plea, immunity ‑ ‑ ‑

NETTLE J:   Heard without prejudice, surely?

MS ABRAHAM:   Absolutely.  I am not suggesting ‑ ‑ ‑

NETTLE J:   So, what is the relevance of them to this?

MS ABRAHAM:   Because if it is suggested that the DPP have material that nobody can have my friends considered that in respect of him providing certain material to the DPP would not be disadvantageous or limit them in the conduct of their case.

NETTLE J:   You mean what he said in the course of the “without prejudice” negotiations can be used to draw that conclusion?

MS ABRAHAM:   So that we are not at cross‑purposes, what we say is that it is an aspect of the conduct of the matter like the committal which indicates they are not constrained by the examinations.  The DPP know, or know more from the discussions that they had - obviously cannot be used in evidence but the fact that they were happy for the DPP to have that information is relevant to the question of how, in effect, we cannot get a fair trial if people know this information.

NETTLE J:   So it cannot be used in the trial but can be used here to lock the stay, as it were?

MS ABRAHAM:   It is relevant to whether or not there is voluntary disclosure.  Could the particular people, be it the AFP or the DPP, have the material legitimately from other sources, and the answer to that in some respects in some of the cases is yes.  So, going back to answer your Honour the Chief Justice’s question, the concept of what is in these examinations, in my submission, has been put at a higher level than a proper reading of the examinations bears out.

KIEFEL CJ:   It may be that we are taking you a little further than the notice of appeal, as Justice Gageler has pointed out too.

MS ABRAHAM:   Yes, probably, but ‑ ‑ ‑

KIEFEL CJ:   Because the case is directed to the basis of there being a purpose of achieving a forensic advantage.

MS ABRAHAM:   Yes.  Before going back on track, can I simply say that that section from 202 onwards does summarise what is the issue of voluntary disclosures and the very active involvement in the committal proceedings which is relevant for the forensic constraint which is part of the ‑ ‑ ‑

KIEFEL CJ:   Having said that about the notice appeal, of course your own submissions raise the questions of the “would, not could” issue and whether there are available means, so the issue does arise to an extent, does it not?  I mean, what has been investigated here arises in part out of your own submissions.

MS ABRAHAM:   Yes, in response to theirs.

KIEFEL CJ:   In response, yes.

MS ABRAHAM:   To be perfectly blunt, the ground of appeal is a rather – the ground of appeal is quite confined.  What has been argued, in writing at least, is broader.

KIEFEL CJ:   Goes beyond and ‑ ‑ ‑

MS ABRAHAM:   And, indeed, in some of the oral submissions today goes broader still to raise topics that we did not address because they were not in the first lot of submissions at all.  So what we have been trying to address is the issue of the findings of the Court of Appeal that there was no basis for a stay, in effect, that there had been error below - quite properly found that there had been error below which enabled them or required them to consider the matter for themselves and, in my submission, that is necessary. 

My friends, particularly Mr Walker today, concentrated very heavily on the question of what I will refer to in shorthand as the Moti basis, the administration of justice basis, although there was some discussion about constraint of the forensic choices.

BELL J:   But the ground of appeal is directed in essence to whether the findings at paragraph 880 supported her Honour’s conclusion that it was appropriate to stay.  The ground is that the Court of Appeal erred in finding that the unlawful compulsion of answers from the appellants for the purposes of achieving a forensic advantage to the prosecution was not sufficient in the circumstances of the case for the grant of a permanent stay. 

For my own part, I have difficulty seeing how the submissions developed in relation to what you characterise as the Moti ground, which I take to be the integrity of the administration of justice, is not directly raised by that ground.  Perhaps you are not saying that.

MS ABRAHAM:   I did not think I was saying it was not raised by the ground.  I was assuming that the ground – I was not going to be critical of the drafting of the ground, but I had assumed and we had responded in writing to, in effect, what my friend started his submissions by today, that there was no error below.  The errors that were found by the Court of Appeal are wrong and, in effect, one ought to revert to the first instance judgment, how the errors ‑ ‑ ‑

GAGELER J:   That is where you have to get to.  I mean, it is paragraph 18 of your hand‑up submissions, is it not?

MS ABRAHAM:   Yes.

GAGELER J:   That is where we should be looking, is it not?  I mean, that is really the case that you have to meet?

MS ABRAHAM:   Yes.  But in addressing that in terms of – that the errors are properly found, in my submission, it has been necessary to look at things like the course of the trial – sorry, course of the application – what was or was not asked because that is the basis of the finding of the error.  What concessions were made is relevant because on the concessions made, in my submission, the first basis of the stay falls away.

NETTLE J:   The concession being that no questions were asked to establish that there was forensic disadvantage.

MS ABRAHAM:   And there was a forensic choice not to do so, that there was no evidentiary basis for a finding of impossibility, that you would expect that ‑ ‑ ‑

NETTLE J:   It is just the last bit goes a little far in view of the passage to which I took you before where Mr Walker submitted to the Court of Appeal that notwithstanding the absence of questions of the kind you have mentioned it was open to the primary judge to draw the inference which he did.

MS ABRAHAM:   I accept that, your Honour.  The problem with that is that the Court of Appeal found, quite rightly, that the impossibility was a critical part of her reasoning and that was wrong, in effect.

NETTLE J:   Yes, I see.

MS ABRAHAM:   So, ultimately, on my friend’s argument this morning, unlike the argument in writing, very little has been said about the actual use made of material, except towards the end of his submission he made the broad assertion that it has been used to put the brief together, et cetera.

In my submission, one cannot avoid that is a basis, as in the use of the material was a basis for the stay and the court quite properly found there was no use of the material and it was not even a matter argued.  One cannot avoid that by not addressing it.  One cannot avoid it by, in my submission, dealing with it in the sense of a generality – that is, it was used to put the brief together. 

If the refining and guiding in those two questions and answers is all one has and not followed up, in my submission that cannot be a basis.  It was accepted by my friend below that they could not point to any document or any material or any evidence that has arisen as a result and, in effect, that they did not set out to prove that because they did not need to is the submission. 

Can I give your Honours some references.  I will not take the Court to them but there has been submissions made today concerning the state of the brief and what material was or was not in existence given the volume of the appeal books.  I will give your Honours some references.  First of all, the Court of Appeal referred at paragraph 274 at page 4927 to the compilation of material in the Director’s submissions below.  It seems to me that is a reference to what is in appeal book 13 at page 4347; following it I think it is two or three pages there. 

Your Honours, the following documents are pre‑examinations which reflect the information that was already in existence beforehand.  Also in the appeal books at, I think, page 15 of the first of the appeal books is in fact the opening in respect to […]. 

Your Honours can see from that opening, it is rather lengthy, that it confirms it is a documentary case but when one is looking at the material that is being referred to in the reports prior to the examinations, your Honours will see it is the same sort of material. 

There is an audit report as far back as 2007 which is at appeal book 8, 2455 to 2461.  Just so that is on the record so one can find it.  It is referred to as ECB 83.  There is also a report at appeal book 8, 2462, ECB 4.  Appeal book 8, 2490, ECB 198.  Appeal book 8, 2495, ECB 166.  Appeal book 8, 2525, ECB 199.  Appeal book 8, 2617, ECB 158.  Appeal book 9, at page 3032, exhibit 28.  Appeal book 9, 3044, exhibit 82.  Appeal book 9, 3056, exhibit 53.  Appeal book 10, 3063, exhibit 54.

Your Honours, a number of those documents relate to a topic that my friend raised this morning in respect to some questions asked and the compilation of the statement in respect of – sorry, I cannot remember the pseudonym ‑ in respect to Russell. 

What those documents show is that they had spoken to Mr Russell before the examination.  Mr Russell had provided over 100 pages of notes.  A statement taking process clearly was occurring at an early stage, it was not signed until afterwards.  It is specifically addressed in respect to the argument my friend raised this morning by the Court of Appeal, quite correctly.  It is at paragraphs 267 and 268 of appeal book 15, at 4924 and 4925.

We have made submissions about some aspects of the law in respect to the principles in relation to a stay.  Can I make a couple further brief points?  My friend has said this morning that the law about stays is uncontentious, and, in our submission, it is.  It is well established.  We have in our submissions what those principles are.  My friend’s submissions in writing, and some of his submissions today, in my submission, are inconsistent with X7 (No 2).  That is the five‑member Bench decision in New South Wales. 

My friend has made two submissions in respect to X7 (No 2).  In writing in their submissions – that is, Mr Hodge’s submissions – at 41 and following it is suggested that X7 (No 2) is inconsistent with X7 (No 1) and Lee.  In the reply submissions, the submission is that the interpretation placed on X7 (No 2) by the respondents and by the court is incorrect.  The argument put is, in effect, that X7 (No 2) was saying well, the remedy to getting your stay is to put the transcript of the examination before the court.  That, in my submission, is not what the meaning of X7 (No 2) is.

Your Honours are well familiar with it - there is one particular passage I simply highlight.  It is paragraph 108 of the judgment which emphasises that the fact that the conduct of the examination may have different consequences depending on the nature and extent in any given case and then they follow on that X7 (No 1) and Lee does not compel the conclusion. 

In my submission, that is actually critical in this case because what it is saying is one is not simply - you have been examined, it relates to the topic with which you are charged or later charged, therefore you get a stay.  What it is saying is we need to look at the particular circumstances of the case.

How does it warrant a stay?  What is it about it that warrants a stay, which involves an examination of details of the – sorry, details of the examinations, the use – the nature of the brief, et cetera, et cetera and, with respect, in something like this it would involve an explanation as to why it would be productive of actual unfairness, as the court pointed out in paragraph 210.

Without looking at the individual circumstances, in my submission, then as the court there says it would be to ignore the balancing exercise in the interests of the community in the bringing of the continuation of the criminal proceedings.  That, in my submission, is important here because what one is dealing with is when the Court of Appeal reached its conclusion in respect of the administration of justice stay they did so in a context where they had found that there was no unfairness as a result.  You do not divorce the two, in my submission. 

The examinations that are required or the consideration of the material that is required to demonstrate that simply just has not occurred at any stage, in my submission, in this case.  That is required is not a misreading of X7 (No 2).  It is a correct application of stay principles.  Were it otherwise, whenever there was an unlawful examination or an examination that was unlawfully disseminated of a person who was compulsorily examined on a topic, a stay must necessarily follow.  That, with respect, is the effect of my friend’s argument.

Were it otherwise, in my submission, one is dealing with presumptive prejudice, in effect, which is the very thing that in particular in Jago was said was not appropriate, the Court in Jago recognising that a delay in cases may well affect the conduct of a trial, but you must be able to point to something in a particular case, otherwise it would be presumptive.

BELL J:   The primary judge at paragraph 226 in her summary of the authorities and in particular in her discussion of X7 (No 1) and (No 2) acknowledges that the fact of an unauthorised examination on its own does not require a stay.  It all hangs off paragraph 880.

MS ABRAHAM:   In my submission, yes and no, and the reason I say yes and no is that – if I may go to it again, that in respect of - underpinning that are findings that the Court of Appeal has overturned, one being that there was use of material.  If these paragraphs are to be the summary paragraphs, which as I understood - and the reading of the judgment appears to be that way – then it is based on conclusions which were not open on the evidence and the use and an approach of impossibility conceded the word “impossible” not have an evidentiary foundation.

So, in my submission, it is not as simple as let us look at 880.  In my submission, one needs to step back.  What the court did was look to see what were the two bases of her findings – her basis for the stay.  The first one, it is this:  is there any error?  Well, there is.  There is no evidence of use.  In respect of the second, which is the administration of justice, is there error here?  Yes, there is.  There is no finding of recklessness.

I have already made submissions about the law in brief terms in any event in respect to the administration of justice and I have referred to Moti and I have referred to the fact that below – that is, at first instance – the appellants conceded that they would require intention or recklessness, not mere negligence.  That, in my submission, is a recognition of the authorities relevant to a stay and a recognition of Moti, for example, that looked to see what state the minds of the authorities were and that they knew that the conduct was illegal.

That is why there is a finding of recklessness.  To suggest now that it means something other than the legal test in my submission is incorrect.  The test below was referred to as the one applied by the Court of Appeal.  We have the references in our submissions.  Her Honour was applying that test.  That was not in issue, in my submission, below.  There was no argument in the Court of Appeal about the meaning of the word “recklessness”.  It was accepted that that was the test but it involved an awareness and then proceeded regardless.

The reference this morning by my friend to Helmhout and there being a second or alternate way that one can be reckless in my submission is inconsistent with the proper reading of the decision.  We refer to that at paragraphs 69, 70 and 71 of our submissions.  It is directly inconsistent with Marijancevic, which has been applied in the way the Court of Appeal has understood it to be and in my submission the correct way in the New South Wales case of Gedeon, which is referred to in footnote 78.

The attempt now, with respect, to downplay the importance of the recklessness is the fact there is no evidence of an awareness and there was no finding of awareness below and there was no challenge to the question of his honesty.  Therefore, what he did was in the bona fide belief. 

So the Court of Appeal made a finding on the basis of the law as put to the first instance judge and as your Honours will see from the footnotes in footnote 73 of our Hodges submission, referred to by the appellants in their written submissions in the Court of Appeal and in my submission the argument now put in effect based on Truong that it could be something lesser was not raised at first instance.  Truong was not referred to and, as I said, the meaning of “recklessness” and the need for recklessness was not challenged.

I note Truong is cited in Moti but not for the paragraph that is referred to, rather the paragraph in relation to deliberateness is that cited by the Court in Moti but we have that in our written submissions.  Would your Honours just bear with me a moment, I addressed in a somewhat different order than I had anticipated.  I am trying to work out if I have

covered what needed to be covered.  I have misplaced my notes from this morning. 

KIEFEL CJ:   Perhaps you can consider that for the morning.

MS ABRAHAM:   It is here somewhere.

KIEFEL CJ:   Perhaps you can find it after we adjourn. 

MS ABRAHAM:   I apologise, your Honours.

KIEFEL CJ:   The Court will adjourn to 9.45 am tomorrow for the pronouncement of orders and otherwise to 10.15.

AT 4.16 PM THE MATTER WAS ADJOURNED