Strickland (A Pseudonym) v Commonwealth Director of Public Prosecutions & Ors; Tucker (A Pseudonym) v Commonwealth Director of Public Prosecutions & Ors; Hodges (A Pseudonym) v Commonwealth Director of Public...

[2017] HCATrans 238

[2017] HCATrans 238

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M81 of 2017

B e t w e e n -

TONY STRICKLAND (A PSEUDONYM)

Applicant

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 M82 of 2017

B e t w e e n -

RICK TUCKER (A PSEUDONYM)

Applicant

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

Office of the Registry
  Melbourne  No M83 of 2017

B e t w e e n -

EDMUND HODGES (A PSEUDONYM)

Applicant

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 M84 of 2017

B e t w e e n -

DONALD GALLOWAY (A PSEUDONYM)

Applicant

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

Applications for special leave to appeal

BELL J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 NOVEMBER 2017, AT 9.31 AM

Copyright in the High Court of Australia

____________________

MR C.G. MANDY:   If your Honours please, I appear for Tony Strickland.  (instructed by Jimmy Lardner Lawyers)

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

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

MR P. CAHILL, SC:   If the Court pleases, I appear for Donald Galloway.  (instructed by Hicks Oakley Chessell Williams)

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

MS S.J. MAHARAJ, QC:   If it please the Court, I appear with MR G.A. HILL for the second respondent in all four matters.  This is for the proposed notice of contention.  (instructed by the Australian Government Solicitor)

BELL J:   Thank you.  Now, is there some agreed order?

MR WALKER:   I think I have been pushed to the front, your Honours.

BELL J:   Thank you, Mr Walker.

MR WALKER:   I will not cover all issues to the same degree.  In particular, my learned friend, Mr Tehan, will focus on the recklessness question which I will touch on.

BELL J:   Yes.  Mr Walker, you appear for Mr Hodges?

MR WALKER:   Yes.

BELL J:   Just so that one can understand the primary judgment, am I right – no, I will not go there.  It is a question of identifying ‑ ‑ ‑

MR WALKER:   Yes.

BELL J:   ‑ ‑ ‑ but it probably does not arise, Mr Walker.  You proceed.

MR WALKER:   May it please the Court.  Your Honours have seen that the exchange of written argument sees the first respondent asserting that these are applications that should fail because previous applications in other cases have failed.

BELL J:   Yes.

MR WALKER:   The footnote 4 assembly of, I will call them decisions. They are obviously not authorities.  They are decisions in special leave applications.  We wish to confront that at the outset in the following fashion.  What marks these cases as appropriate for a grant of special leave are the following features which do not appear in those earlier refusals of special leave.  Furthermore, they have not appeared in such a combination in any case that, whether it be an appeal or a stay, has been before this Court.  To frame it, your Honours appreciate, we have called in aid a principle that we would brand the Hammond principle, be it X7 or Lee (No 2), to use the jargon. 

Now, the features are, as we have paraphrased the findings by the Court of Appeal itself, that the Commission examiner, both in relation to the examination and the dissemination of its product, was proceeding on a view of power and, indeed, a view of limits on power, which could be described as wrong, ill-informed and unreasonable.

Now, those are objective matters which are also informed by his performance as a witness and the so‑called recklessness ground, upon which I will not tarry very long, is one which has at its heart what we submit is the evident fallacy of refusing to countenance the recklessness finding made by the first instance judge because she had, no doubt appropriately, bearing in mind reputational issues, expressly disavowed a finding that testimony before her had been given dishonestly.

EDELMAN J:   Where does the recklessness finding go, on your argument?

MR WALKER:   Your Honour, in principle, it goes only to a relevant consideration.  One way to put our claim for special leave based on it is, however, that the Court of Appeal seemed to regard it as essential.  Now, there are two possibilities:  essential simply in the way her Honour constructed her Honour’s reasoning and that that, with respect, might be a fair way of describing the way her Honour reasoned, but we submit that the Court of Appeal properly understood, is in fact holding that without some such finding, there could not be a stay.

That is a special leave point, in our submission, because there is a real danger that what ought to be a robust self‑defensive jurisdiction of the courts will become hooked up on matters of nomenclature such as “reckless”, and we plead guilty, as others here are, to perhaps venturing into argument as if a statute is being construed in relation to the meaning of reckless.  There cannot be any such thing. 

Whatever label it should attract, the objective facts, including in light of the performance of Mr Sage as a witness, unsatisfactory as it obviously was held to be, produces as I say, the examination without power ‑ that immediately distinguishes it from a number of other cases – the very wide dissemination, and that horse has utterly bolted and cannot be brought back.  There are 17, we think, investigators who remain on the prosecution side and who knows how many more in terms of ramifications.

The whole exercise was one which from the beginning was informed by a theory of criminal liability, that is a theory of a prospective prosecution case and there is the other feature that distinguishes these cases.  The questioning here is questioning about which the court can know.  It does not need to know about it in much detail because beyond any possibility of argument, it was questioning which went right to the heart and the details of supposed criminal liability.

BELL J:   And succeeded, according to the affidavit of the manager of the AFP, as I understand it, in obtaining admissions locking at least some of the applicants into an account, the very purpose of the exercise.

MR WALKER:   Yes.

BELL J:   This exercise having been undertaken after the applicants had been offered the opportunity under caution of being interviewed and exercised their rights to decline.

MR WALKER:   Exactly so.  Now, that really completes the catalogue of features which, in our submission, do two things.  First of all, it really removes entirely this inappropriate use of previous decisions in special leave applications as if that should tell against us because the difference between those cases and this, in the combination of features I have just noted and that Justice Bell has just, with respect, summarised, is overwhelmingly different.  Second, of course, those are features which, with respect, ought to excite a concern of a kind that the judge at first instance, with respect, correctly appreciated. 

The question was whether there could be a fair trial after such an egregious departure from the accusatorial model that is disturbed by statue, only to very clearly delineated extents, all of which were infringed in this case, all of which were infringed - the examination was unlawful, it was for an avowedly improper purpose.  When I say “avowedly”, no one could argue it was not improper and it was a purpose which was designed to obtain an advantage which the law denies the prosecution. 

So this is not peripheral, it is not incidental.  It is central to the accusatorial model.  That is why we invoke, with respect, X7 and Lee (No 2) for this proposition.  If special leave not be granted and this case remains the leading case in this State on the interpretation of those principles, those principles will be best served, the principles, that is, that this Court pronounced and enforced in X7 and Lee (No 2).

The next matter that we, with respect, urge as a reason for special leave goes in particular to the refinement ventured by the Court of Appeal in relation to what might be called the requisite prejudice.  Now, again, it does not turn on particular wording.  I use the word “prejudice” to describe those detriments to fair trial which can be predicted with sufficient confidence so as to require being weighed against the usual imperative for justice to be administered by a trial being had. 

Now, what has been decided against us in the Court of Appeal is on the basis not of factual disagreement with her Honour’s relatively straightforward finding that the omelette could not be unscrambled.  Rather, it says there is a burden on those who seek a stay even in such a case of thoroughgoing, early and complete infusion of the investigation and preparation of the prosecution with the benefit of unlawful examinations widely disseminated.

Even in that case, the burden involves taking, as it were, the prosecution brief and designating those parts of it, that is, items of intended proof against the accused and saying that is one which can be seen to be contaminated in the sense that it derives, wholly or in part, we are not quite clear what the principle requires, from the improper conduct. 

Now, in our submission, that is to give insufficient weight in an entirely erroneous fashion and certainly in a way that requires this Court, with respect, to correct the matter, to the fundamental prejudice which is suffered by a person who unlawfully is required to respond practically to give a defence answer to a proposed prosecution.

That, in our submission, provides this Court with a platform in these applications to consider and, if we be correct, to vindicate the robustness of what I will call the Hammond principle, the accusatorial model which may be departed from within constitutional limits, only to the extent of statutory permissions where those permissions are observed as to the limits imposed.  In our submission, it is no part of that principle to require an accused to say, not only have I been forced to participate in the investigation against myself, but I can now show you those parts of the brief which exist either at all or in the form they exist, because of my wrongful compulsion. 

Now, in our submission, Sir Harry Gibbs says nothing along those lines and it imposes a burden which, in our submission, is not well adapted to the purpose of this principle which is, as I say, the self‑protective jurisdiction of the Court to prevent, in the rare cases where all the features align, as here, an unfair trial.

Now, your Honours, that involves, as a matter of detail only, something which I will describe, I hope not disrespectfully, as a furphy.  It is said that I conceded in the Court of Appeal that the proper approach to matters of compulsion to give one’s version in relation to prejudice at trial, is as your Honours Justice Keane and Justice Gageler had put in a minority view.  The exchange recorded in transcript in the Court of Appeal starts rather unpromisingly for that idea of a concession.  The first two words of mine transcribed in response to an answer, a question about whether we said that was correct was “Absolutely not”.

That is a furphy but special leave does not depend upon supposed concessions.  We fought this case on the basis that of course we were not saying that the administration of criminal justice requires us to have a licence to concoct lies in the witness box and to keep that possibility pure and open, I mean it is a possible argument, that we must not be compelled to tell the truth.  We never argued that; we do not argue that and Sir Harry Gibbs was not talking about that when saying as if it were self‑evidently correct, definitionally correct that it is a departure from proper fair trial standards when somebody is compelled to give their answer to the proposed charges.

It is for those reasons, in our submission, that at the heart of the argument for which we seek special leave is a matter which does not depend upon any contested fact, which has this powerful circumstance of the improper purpose of the examination, designedly to obtain our answer to the charges and where that has been widely disseminated and is now inextricably part of the overall prosecution case.

EDELMAN J:   That is really your ground 2, is it not?

MR WALKER:   Yes, it is.

EDELMAN J:   Is not ground 1 really just caught up in it?

MR WALKER:   Yes.

EDELMAN J:   In ground 2?

MR WALKER:   I would not argue that they are separate and discrete, no.  That is correct.  Your Honours, that really completes what I want to say as to why, in our submission, these cases all present a position which, as rare and deplorable as it was, was correctly addressed by her Honour at first instance.  No error of the kind said to be made out in the Court of Appeal in truth did exist and the initial response in the administration of justice to this, as I say, deplorable and one hopes very rare position was the proper one and that this Court ought to vindicate principles which are critical to the health

of the criminal justice system by examining the matters that we submit show error in the Court of Appeal.  May it please the Court.

BELL J:   Yes.

MR TEHAN:   Your Honours, the ground which concerns recklessness is in our application and that of Strickland ground 2 and, in the applications of Hodges and Galloway, ground 1.  Your Honours, special leave should be granted in this case because the court below was wrong in quashing the judge’s finding that the examiner, Mr Sage, was reckless to an unacceptable degree in quashing the order for a stay in order to protect confidence in the administration of justice.

EDELMAN J:   What do you say the primary judge actually found in relation to the recklessness finding?  Was it a finding of recklessness in the strict legal sense or was it the use of recklessness to denote a high degree of carelessness?

MR TEHAN:   The latter, your Honour.

BELL J:   In that regard her Honour might equally have spoken of “seriously negligent” conduct, to use Justice Kirby’s expression in Truong v The Queen.

MR TEHAN:   Yes, your Honour.  Indeed, there are signs that her Honour must have been speaking in the way that the Court has suggested because she used the phrase “reckless indifference” at one point.  She, in her specific finding at 882, I think it is, used the phrase “reckless . . . to an unacceptable degree” and at other points she spoke in terms of Mr Sage having no regard for his statutory obligations.  All of those are indicators that her Honour was speaking not in terms of recklessness as known in the criminal law but recklessness in a general way indicating an attitude by Mr Sage to his statutory responsibilities devoid of care, regardless of the consequences.

EDELMAN J:   Is your ground in relation to recklessness in the same way as Mr Walker’s clients really just bound up, in your case, ground 1?

MR TEHAN:   Yes, it is, your Honour.

EDELMAN J:   It is just a relevant consideration to have regard to in the context of the whole of ground 1?

MR TEHAN:   It is and when one goes to the judge’s findings at 881, 882 and 883, and in particular 880, it is apparent that the reckless matter is bound up in our ground 1.  Now, your Honours, the Court of Appeal quashed the judge’s finding because they found there was no evidence of Sage of awareness of the possibility that section 25A(9) might require an order for non‑publication of examinations and that finding is at application book 353 at paragraphs 108 to 109.  In our respectful submission the Court of Appeal were wrong to quash the judge’s findings for three reasons. 

First, as our discussion has identified, whether the judge meant recklessness in the strict legal sense or in the wider sense, which we contend for, is perhaps not ultimately to the point.  Secondly, in this case, to get to the ultimate matter, which is to the point, the order for a stay was justified on the basis of Sage’s wanton disregard for his statutory obligations because that disregard was at the heart of the examination process. 

It permitted investigators to be present, to read transcripts of examinations so that, as the leading investigator observed, the examinations allowed for the police to press ahead with their investigation in the confident knowledge that the applicants were impeded from advancing any innocent explanations upon their prosecution and that indicates the way in which it is bound up, indeed, in ground 1.

Thirdly, that means that there was, in our respectful submission, a sufficient connection between Sage’s disregard for his statutory obligations and the prosecution of the applicants to justify a stay on the ground of maintaining confidence in the administration of justice.

So this application gives rise to two issues:  first, whether wanton disregard by an examiner for his statutory obligations may amount to recklessness.  The state of mind of recklessness must be judged in the context of the objective circumstances. 

In this case, those objective circumstances included at least the following.  First, no court had ever said that section 25A(9) meant anything other than its plain words.  Second, Sage treated his usual practice in allowing dissemination as a substitute for the requirements of the Act.  Third, he did not act independently or diligently but automatically approved all examination requests put before him and, fourth, he allowed numerous police investigators to attend examinations of the applicants, without turning his mind to who they were, what role they might play in the prosecution of the applicants, whether they were members of ACC staff or the possible impact that might have on the fair trial of the applicants.  Of course none of those objective circumstances were overturned by the Court of Appeal.

The degree of connection between the reasonableness of acts said to be reckless and the degree of foresight of consequences flowing from those acts ought, in our respectful submission, be relatively low in a case such as

the present of wanton disregard of statutory obligations concerning the ensuring of a fair trial. 

The second issue which arises is this.  The degree of directness of connection that is necessary between the misconduct of an official and the trial process in order to justify a stay of proceedings and there is not much jurisprudence in this Court on that point.  A Full Bench of the Court of Appeal of the Supreme Court of New Zealand in the case of Wilson, which we refer to at application book 477, has made the point that a “but for” test is not required.

As the House of Lords said in Latif the exercise is a balancing one between the gravity of the crime and confidence that the courts will, as this Court also has said in Moti, protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike.

KEANE J:   Mr Tehan, is this point you are making now, is this really Mr Walker’s second point about where the burden of proof of prejudice lies?

MR TEHAN:   It is certainly tied up in Mr Walker’s second point.  The principle I just articulated is of course at stake in this case.  In our submission, the resolution of these two issues requires the grant of special leave.  May it please the Court.

BELL J:   Yes, thank you, Mr Tehan.  Mr Mandy.

MR MANDY:   If the Court pleases, I adopt the submissions of Mr Walker and Mr Tehan.

BELL J:   Thank you, Mr Mandy.  Yes.

MR CAHILL:   If the Court pleases, I also adopt the submissions of Mr Walker and Mr Tehan.  I have nothing to add.

BELL J:   Yes, thank you, Mr Cahill.  Ms Abraham.

MS ABRAHAM:   Your Honours, in our submission, this application relates to the well‑established principles of this Court in relation to a stay of proceedings and the application of those principles to the facts of this case.  I appreciate my friend, Mr Walker, said the primary basis of our opposition to special leave is that special leave has been refused before. 

That is not the basis for opposition.  As a matter of fact, special leave has been refused before.  But the well‑established principles of this Court are the principles in relation to a stay of proceedings.  They are the principles in Jago, Edwards, Moti and the like.  There is no question, in our submission, that they are the relevant principles in this particular case.  It is the application of those to the individual facts of the cases - hence X7, Seller and the like. 

What X7 (No 2), Seller and a number of other intermediate appellate court decisions and, indeed, later decisions of this Court have recognised is that the decisions in X7 by this Court and Lee (No 2) in this Court do not alter the stay principles.  That is not the issue that was to be decided in those cases and so one goes back to the question of the stay principles. 

In that context can I make a couple of observations?  First, in the Court of Appeal below my friend acknowledged that the authorities in relation to a stay – this is at paragraph 247 – do require the identification of a particular forensic disadvantage.

BELL J:   Sorry to interrupt you, Ms Abrahams, but at paragraph 215 at application book 394 the Court of Appeal referred to her Honour’s encapsulation of the principles at 869 of her reasons and their Honours include as the source of that statement of the principle Ainsworth v Criminal Justice Commission.  The second of the principles is said to be irrespective of whether or not unfairness is demonstrated, the question is whether the proceedings are an abuse in the sense that the use of the court proceedings brings the administration of justice into disrepute.  That is rather different to this loose concept of public confidence in the courts being affected.

MS ABRAHAM:   Yes.

BELL J:   But is that a fair statement of Ainsworth?

MS ABRAHAM:   Yes.  If ones goes to X7 what one is talking about – X7 (No 2), sorry – his Honour Chief Justice Bathurst identified that of course in the ordinary case you do have to identify a forensic disadvantage or something that has arisen as a result of conduct.  But he recognised there is a class of case and identifies Moti and Ridgeway as the class of case where there might be a stay in relation to where there is no unfairness as such.

In X7 (No 2) the court said, typical of these cases, it would be in the first category you are looking at, you need to identify unfairness.  That is what, in effect, was accepted here but then this point was made, no, the issue here really is the conduct of the authorities.  But the reason why it is important is this, particularly given my friend, Mr Walker, has said these issues can be dealt with in a factual context where there is no dispute. 

Well, if one wants to look at the factual context where there is no dispute, there is no proof in this case of any disadvantage – any use of the material relevantly.  In paragraph 6 of our written submissions we set out the various findings of the Court of Appeal which are not challenged by my friends, that is ‑ ‑ ‑

EDELMAN J:   Ms Abraham, just before you get into those particular findings, do you accept that one basis upon which it might be concluded that the administration of justice is brought into disrepute is where, in a fundamental respect, the legal system would, effectively, be contradicting itself or stultifying its fundamental purposes?

MS ABRAHAM:   Yes.  If that can be classified as using the Court – it has to be using the Court though for the process that is an improper process.

EDELMAN J:   Yes.

MS ABRAHAM:   So, what you would be looking at – it would have to be something in the ilk, in my submission, of a Moti sort of situation where what one is dealing with is not even recklessness.  What one is dealing with – you are knowing that what you are doing is illegal and you do it and there is – the accused in Moti would never have been in Australia but for that so nothing would happen. 

EDELMAN J:   Would this case – the decision of the Court of Appeal – not stand for the proposition that it is possible to have a trial in circumstances where unlawful and substantial unlawful conduct by the AFP – or to which the AFP were party – designed to achieve two purposes and which does achieve those two purposes can still go ahead?

MS ABRAHAM:   In my submission, all this judgment does is confirm that in relation to a stay of proceedings that one looks at – they recognise there are two ways you can do it but, primarily, you are looking at whether there is a forensic advantage – that in this case despite any conduct, none of which, I might add, was intentional in that they believed what they were doing was lawful, so we are not talking about unlawful conduct – in the sense of knowingly unlawful – that, despite that, there is, in fact, no forensic advantage.  There is no benefit to the prosecution.

EDELMAN J:   The forensic advantage that the AFP wanted was two factors – was to lock the accused into a version of events on oath and to assist the AFP to know what to look for in assembling briefs for the prosecution.  The findings were that they got both of those factors.  They got everything they wanted.

MS ABRAHAM:   The finding of the Court of Appeal was that there is no evidence of any forensic advantage obtained by the authorities.

BELL J:   How does that finding sit with the acceptance that at least some of the applicants made admissions and were locked into an account at a compelled hearing following the exercise of their right to decline to speak with the police, having been cautioned?

MS ABRAHAM:   Your Honour, when the court looked at the question of what actual forensic advantage was there, none was identified.

BELL J:   Ms Abraham, why is that not a forensic advantage?  As I understand it, the manager of the AFP acknowledged it was.

MS ABRAHAM:   With respect, if that is the case – and that is all that is required – (a) that changes the test in relation to a stay of proceedings, in my submission, because a stay of proceedings, it would be an unnecessarily unfair trial of which nothing could be done by the court.  But, it would mean that whenever an examination took place or it was wrongly disseminated – which is what occurred in a number of the cases that have come before the intermediate appellate courts – it necessarily followed that there was an advantage to the prosecution.

EDELMAN J:   No.  It may mean that whenever an examination was unlawfully conducted for substantial unlawful purposes which were then achieved, then there may be an unfair trial.

MS ABRAHAM:   In my submission, one needs to be careful about the unlawful purposes.  If it is not intended to be unlawful purposes because they believed what they were doing was lawful and a stay is not about punishment, in my submission it does not follow because, otherwise, the unlawful dissemination in Lee, for example – that was for an improper purpose. 

What X7 (No 2) says is that merely the fact of an unlawful conduct or unlawful and improper dissemination means it does not necessarily compel the result of a stay because if one takes that approach, in my submission, one is to ignore the other aspects of a stay – that is, looking at the consequences, number one, and, number two, the interests of the community because when one is looking at the interests of the community, what one has here is findings by the court that the material was not actually used.  Nothing could be pointed to.

It was a forensic choice on the part of my friends to run the stay application below, knowing the state of the law, a forensic choice not to identify any particular use – the Court of Appeal held – and that has not been challenged.  So, having made that forensic choice, they fall back on, in effect, what are the statements in this Court in X7 (No 1) and in Lee and say, regardless, therefore, we are entitled to a stay.

EDELMAN J:   Even if you are right about the lack of “but for” forensic advantage, why is it not still a forensic advantage to be able to obtain a degree of confidence that within 10 million documents there are far fewer that are necessary in the process of assembling a brief for the prosecution than might have been otherwise the case?

MS ABRAHAM:   What one has to look at, at the end of the day, is whether the trial of the accused would be unfair – not could be unfair – would be unfair, and there is nothing that the trial judge could do to alleviate that.  That is why cases where there have been improper disseminations – for example, Lee, and the like – prosecutors that are involved in the matters are fresh prosecutors that know nothing about the material. 

What one knows in this case is that there is nothing in the brief that has come about as a result of these examinations.  What one knows is that there will be a fresh prosecution team.  So, in those circumstances, when one is talking about no – there is no, in fact – it would be…..it would be unnecessarily an unfair trial.

As I said, it is “would”, not “could”.  What my friends are trying to do is change, with respect, the test in relation to a stay of proceedings.  This is an application for a stay like any other.  It occurs in other factual scenarios.  It, with respect to my friend, smacks of presumptive prejudice.  Just because we have spoken about it – been examined – therefore, the trial ought to be stayed.  In my submission, that is the very thing that has been refused by the intermediate appellate courts and no error has been pointed to in those cases.  They cannot be distinguished, as my friend suggests.  Sorry, your Honour was going to ask me a question.

BELL J:   It was just – I thought that the primary judge found that comparatively little work had been done in terms of processing the database with the more than 10 million documents before the conduct of the first series of compelled examinations.

MS ABRAHAM:   Yes, but the problem is, your Honour – as the Court of Appeal pointed out – the officers gave evidence of little or no use of the examinations and that was not challenged at all.

BELL J:   The officers also made no record of the process by which they identified the material documents, as I understand her Honour’s reasons.

MS ABRAHAM:   But, with respect, your Honour, they were not challenged.  It was not put to them.  You use that far more than you say in your statement. 

BELL J:   I see - all right.

MS ABRAHAM:   It just was not challenged.  If is not challenged – that is my point about ‑ ‑ ‑

BELL J:   Yes.

MS ABRAHAM:   ‑ ‑ ‑ the way the matter was conducted below, it was not to identify any forensic disadvantage.  The court below – quite properly, in my submission – drew the inference that there was no benefit for them doing that – that they had all the material that was necessary for them to do that and there were simple steps that could have been done if they so chose.

BELL J:   Do we have exhibit 1 in our papers?  I think that is the manager’s affidavit.  There is reference to it.

MS ABRAHAM:   No. 

BELL J:   Am I right in understanding that the manager of the investigation, in that affidavit, gave an account that it had been intended that the compulsory examinations would lock the applicants into an account so that the prosecution would know whether they were proposing to put forward an innocent explanation or not and that would assist in the future course of the investigation?

MS ABRAHAM:   I understand that he noted that locking‑in was one of the consequences that would flow, in effect, from ‑ ‑ ‑

BELL J:   One of the reasons that the AFP approached the Commission – using it as a hearing room for hire – to take up one of the expressions in the judgment.

MS ABRAHAM:   That was the finding of the court. 

BELL J:   Yes.

MS ABRAHAM:   But, bearing in mind, it was believed by them that it was perfectly lawful to do that.  In Seller (No 2), I think, the court in New South Wales says locking a person in to an account by a compulsory examination is not by itself an improper purpose.

BELL J:   So, one calls a suspect in for an interview and the suspect turns up with their lawyer and one goes through the process of cautioning them that they need not answer any questions if they care not to and they exercise that right and then one goes to the Commission – which is not involved itself in investigating the matter – and procures their consent to the conduct of a compelled examination contrary to the exercise of the right.  That is the effect of the submission.

MS ABRAHAM:   The effect of the findings of the Court of Appeal was that it was for an improper purpose because the ACIC did not have a special investigation ongoing.  But, with respect, they believed it was lawful.

EDELMAN J:   It is the “Robin Hood” defence.

MS ABRAHAM:   But when one is looking at the question of a stay – a stay is not about punishment.  The conduct can be terrible conduct, but if there is no consequence and it is not intentional in the sense that they knowingly went about unlawfully doing things and there is no finding about that and there was never a suggestion, with respect, of the ruling below – then one is not anywhere near Moti territory, in my submission.  So you are not bringing the administration of justice, in effect – in terms of the confidence of the administration of justice. 

The flip side, of course, is that on the evidence there was, in effect, no forensic advantage – no documents found – the brief is as it is – the prosecutors will not know anything – there is nothing that can be pointed to and if there had been, it could have been pointed to.  Bear in mind, a stay – which is what we are dealing with here – the onus is on my friend to establish the basis for a stay.  It is not, with respect, the other way around.

So, in our submission, when one looks at – falls back on the stay principles – and accepts that it is not a question of punishment and accepts that the unchallenged findings of the court below were that there was no forensic advantage and that, indeed, that that was a forensic choice to not go down that path, that they were perfectly able to do if there had been a forensic advantage but instead fall back on – what, in our submission, is presumptive prejudice.

In our submission – as my friends have not identified any errors in any of the judgments below that have said cases like Lee and X7 do not alter the stay principles – and there are a number of them and it is not just in New South Wales – Queensland – this is not a case outside, as my friend seems to suggest, so distinguishable from the others – quite to the contrary. 

The most recent case, obviously, in Queensland, the case of Sanders, the conduct there was clearly unlawful.  He was questioned after arrest and,

nonetheless, the convictions were dismissed, in my submission, because there was no actual prejudice.  If your Honours please.

BELL J:   Thank you, Ms Abraham.  Ms Maharaj?

MS MAHARAJ:   Your Honours, we have no submissions.  A notice of contention does not come into play until special leave is granted.

BELL J:   Yes, thank you.  Yes, Mr Walker.

MR WALKER:   Your Honours, lest there be any doubt below – that is in the Court of Appeal and here – the submission was that there is demonstrated – that is, actual unfairness or prejudice by dint of being compelled to respond in detail to a matter which was under active consideration for prosecution.

BELL J:   Yes, thank you.  Mr Tehan.

MR TEHAN:   Your Honours, we have nothing to add.

BELL J:   Yes, thank you.

MR MANDY:   Nothing to add, thank you, your Honours.

BELL J:   Yes.

MR CAHILL:   The same, if the Court pleases.

BELL J:   We are minded to grant special leave in this matter but before doing so, we have it in mind to stand the matter down with the hope that counsel might be able to agree upon the concise statement of a single ground that captures the issue.  So perhaps if we could stand the matter down and it might be mentioned after the next application.

MR WALKER:   Would your Honours have in mind that we try to draft that now?

BELL J:   Yes.

MR WALKER:   With great respect, we entirely accept that it can be reduced to a single ground.  I am a little fearful of a drafting committee finishing its work that quickly.

BELL J:   Yes.

MR WALKER:   Your Honours, we would invite a direction that the applicants produce a single ground.

BELL J:   Mr Walker, rather than that, we are inclined to think that if we were to come back to the matter at the end of the list a miracle might have been achieved.

MR WALKER:   Thank you, your Honour.  So do I now, your Honour.

BELL J:   Yes.

AT 10:19 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.15 AM:

BELL J:   Mr Walker and Mr Tehan, has there been success?

MR WALKER:   May I show your Honours our attempt?

BELL J:   Indeed.

MR WALKER:   That is what the applicants would propose as the single ground.

BELL J:   Yes, thank you, Mr Walker.  In each of these four applications, there will be a grant of special leave.  The grant is confined to the ground that asserts the Court of Appeal erred by finding that the unlawful compulsion of answers from the appellants for the purpose of achieving a forensic advantage to the prosecution was not sufficient in the circumstances of this case for the grant of a permanent stay.

MR WALKER:   If it please the Court.

BELL J:   I invite the parties’ instructors to obtain the directions respecting the filing of submissions from the Registry.  There has been some small alteration to the provision of the rules to take account of the Christmas break.  What is the estimated length of the appeal?

MR WALKER:   For this round, we think a day.

MS ABRAHAM:   Yes, your Honour.

BELL J:   Yes.  Ms Maharaj.

MS MAHARAJ:   Your Honour, our estimate is that it should take all up no more than two days if we file our notice of contention, which we propose to do.

BELL J:   Yes, very well, we will note the estimate as two days.  Thank you. 

AT 11.18 AM THE MATTER WAS CONCLUDED