Tait v The Queen; Yooyen v The Queen

These proceedings before the High Court of Australia concerned applications for special leave to appeal by Donald Tait and Yooyen. The applicants sought to challenge decisions of the Court of Criminal Appeal concerning the admissibility of evidence and the fairness of their criminal trials. The Commissioner of the Australian Federal Police was granted leave to intervene on the issue of public interest immunity.

The legal issues before the High Court included the concept of relevance and the application of public interest immunity in relation to the terms of engagement and remuneration of an agent provocateur. The applicants argued that the Court of Criminal Appeal erred in its approach to allowing cross-examination of a federal police officer concerning these matters, particularly where the agent was not called by the Crown and the defence alleged he falsely implicated the applicant. A further issue concerned the practice of trial judges in New South Wales directing juries in terms of *Jones v Dunkel*, and the application of a stay of proceedings where the prosecution fails to call an important witness, rendering the trial unfair.

The Court was required to consider whether the terms of engagement and remuneration of an agent provocateur, who allegedly falsely implicated an applicant in a conspiracy, were relevant to the defence. The applicants contended that in cases involving indemnity or foreign agents used by law enforcement, the defence is entitled to know the terms on which the agent agreed to participate, especially if the agent is not available for cross-examination, as this could expose an accused to an unfair trial. The Court also had to assess the application of public interest immunity in preventing such cross-examination and review the practice of directing juries in accordance with *Jones v Dunkel* and the circumstances for granting a stay of proceedings.