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CB v The Queen [2013] HCATrans 277 (8 November 2013)

Last Updated: 12 November 2013

[2013] HCATrans 277


IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Sydney No S18 of 2012


B e t w e e n -


CB


Applicant


and


THE QUEEN


Respondent


Application to reopen special leave


FRENCH CJ
HAYNE J
GAGELER J


TRANSCRIPT OF PROCEEDINGS


AT SYDNEY ON FRIDAY, 8 NOVEMBER 2013, AT 9.30 AM


Copyright in the High Court of Australia


MR J.F. BLEECHMORE: If your Honours please, I appear on behalf of the applicant in this matter. (instructed by Phillip Ryan Solicitors)


MR P.W. NEIL, SC: May it please your Honours, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)


FRENCH CJ: Yes, Mr Bleechmore.


MR BLEECHMORE: Your Honours, our case, which must be that there has been a serious miscarriage of justice in this case, arises, we say, from the erroneous quashing of the permanent stay granted by the primary judge. Our case is and our submission is that the decision, the reasons for judgment of the primary judge are compelling and have been vindicated and demonstrated to be correct in the light of X7, that is, her Honour correctly decided, and the Court of Criminal Appeal, with respect, incorrectly decided, or incorrectly imputed error to the primary judge when she said that the examination of my client by the ACC was an “interference with the administration of justice” in itself, regardless of whether information derived from that examination was communicated to investigating and prosecuting agencies. She made a careful analysis of the relevant - - -


HAYNE J: Well, now, is that right? Is not the conclusion in X7 that the examination was unauthorised and that is a conclusion reached as a matter of generality rather than as a matter of specificity in a particular case?


MR BLEECHMORE: Yes, it is certainly so, your Honour, but there are two steps here. First of all, has there been an interference with the administration of justice produced - - -


HAYNE J: In the particular case.


MR BLEECHMORE: - - - by the examination and then the second question, we would respectfully submit, is whether the circumstances under which that examination was conducted and other circumstances justify a permanent stay. But the first question, her Honour was correct – in fact the parties agree that that was the proper analysis and the way in which the matter should proceed. The question should be the unlawfulness of the examination and, secondly, whether circumstances justified a permanent stay. We submit that her Honour was correct in deciding that the examination of CB was unlawful and constituted an interference with the administration of criminal justice and a contempt of court.


Secondly, and just as importantly, her Honour made a careful examination of the circumstances and the relevant authorities and, in our respectful submission, no error can be demonstrated in her Honour’s analysis of relevant matters and her decision that the exceptional remedy of a permanent stay was justified in this case and that their Honours’, if I may say so with respect, attack on her Honour’s exercise of her discretion was misconceived, based as it was on the premise that there was only an interference if there was a leakage of information and there was no quarantining and, secondly, what we would, with respect, submit is a spurious distinction between – that cannot be upheld - questions which pertain to the crime charge or the relevant pending charge and those which, as they put it, require the examinee to expose some element of his defence.


FRENCH CJ: What do you say about paragraph 133 at page 102 of the application book?


Even accepting her Honour’s findings the evidence does not justify a permanent stay of the prosecution of either of the accused. Without more and, in particular evidence, that the administration of justice would be interfered with denying either accused a fair trial, there can be no justification in staying the prosecution.


MR BLEECHMORE: Is your Honour reading from – pardon me – paragraph 133?


FRENCH CJ: Yes.


MR BLEECHMORE: Yes. That is an important element, in our submission, that her Honour found, having been present at the time when the two relevant witnesses were cross-examined, that in fact it could be said that CB was lured into the examination by assurances given to his solicitor that there would be no questions about the charges.


FRENCH CJ: Well, bases upon which her Honour was prepared to grant permanent stay were not accepted by the Court of Appeal.


MR BLEECHMORE: I do not understand that although some misgivings were expressed about her Honour’s findings, in the end I do not detect any clear findings made by the Court of Criminal Appeal that are to the contrary of those made by the primary judge.


GAGELER J: Did the primary judge make any finding that prejudice had in fact occurred in the circumstances of this case?


MR BLEECHMORE: No. Had in fact occurred – only the prejudice that flows and that is relevant to the public interest and public confidence in the integrity of the process.


GAGELER J: Well, absent such a finding, did she not make the same error that the primary judge was held to have made in the case of Seller?


MR BLEECHMORE: Pardon me, I do not follow, your Honour.


GAGELER J: You are familiar with the case of Seller which is cited against you?


MR BLEECHMORE: Yes, your Honour.


GAGELER J: Paragraph 112 of Seller identifies the error of the primary judge in that case as:


failing to consider whether . . . prejudice had in fact occurred –


in the circumstances of the particular case.


MR BLEECHMORE: With respect, her Honour did consider that and she was careful to say and to look at the authorities that were relevant to the question of whether a permanent stay should be granted absent direct evidence of unfairness to the particular accused. So it is clear that this question – the question that is raised is whether and in what circumstances a permanent stay can be granted in circumstances where no clear tangible, palpable prejudice is in fact demonstrated, but the process - - -


HAYNE J: That is the point, is it not, Mr Bleechmore?


MR BLEECHMORE: It is, your Honour.


HAYNE J: Let it be assumed that it is now established that the examination is unlawful. Absent demonstration that the conduct of the unlawful examination worked a prejudice to the accused, why should the criminal process be interrupted?


MR BLEECHMORE: Because it is clear law, we would venture to say, that a stay can be granted, although there are not many cases directly dealing with the point which is why it is perhaps a special leave point. It is the question, your Honour, where there is no evidence of unfairness which it would be impossibly difficult to establish in most cases, in almost every case.


HAYNE J: I do not know about that.


MR BLEECHMORE: It would be very difficult to establish the use of the information derived from the examination for the benefit of the prosecution.


HAYNE J: That is one form of unfairness, but there may be other forms of unfairness. The case with which we are concerned here is one – correct me if I am wrong - but it is one where no unfairness, specific unfairness, is identified.


MR BLEECHMORE: That is a point of view, your Honour. We would say my client has been exposed to the risk of derivative use of this information in a way that does not breach the non-publication and also is vulnerable to the mandate upon the CEO of the ACC to provide evidence of an offence to the relevant enforcement and prosecuting agencies. That is the unfairness. It is perhaps not fully understood the limited nature of the protection that is given by the non-publication order.


Use can be made of this. The attending agent can go to the clandestine laboratory that hypothetically and without reference to this case at all may have been mentioned. He can suggest lines of cross-examination. He can suggest other evidence that can be led, other witnesses that may be called and do all of that without breaching the non-publication direction. That is the unfairness that my client has been exposed to.


GAGELER J: Now, is the identification of that unfairness consistent with the factual analysis in the Court of Appeal at paragraphs 129 to 131?


MR BLEECHMORE: Yes, it is, because a member of the investigating team who had a close personal relationship with the head of what I will call the relevant investigation was present during the examination. The whole purpose of the examination – this is what leads the process into disrepute, in our respectful submission - the whole purpose of it was to assist the investigation and the prosecution. That is the unfairness to which he was exposed.


This was an examination that was instigated by the Australian Federal Police and not by the ACC. There was a line of questioning pursued at the examination which had been promoted and conceived by the head of the relevant investigation. A member of the investigating officer was present during the examination sitting at the Bar table consulting with counsel assisting suggesting questions and taking notes. The intention was to prepare what is called an examination summary which considers the intelligence implications of the examination. All of that erodes, to understate the matter, erodes public confidence in the accusatorial process.


So, as I have submitted, her Honour concluded that whether the examination was quarantined, and I might add parenthetically that the examination can never be quarantined because the only protection offered by the legislation is a non-publication order which is, as I have submitted, a

very limited protection. It does not protect against use. So the reference to quarantining is one that is not relevant. It is a term that cannot be used about the examination and cannot be quarantined.


So we submit that the Court of Criminal Appeal’s attack on her Honour’s exercise of a discretion was misconceived in declaring that her Honour fell into error in saying that the examination itself was unlawful and in saying that her Honour ought to have made a distinction between questions going to the charge which are relevant to the charge and those which tended to expose her defence, as I have styled it, with respect, a spurious distinction and one which does not derive support from any source.


We submit that in those circumstances the Court of Criminal Appeal, having fallen, with respect, into three errors, the first of which I have adumbrated at some length, the second to say that a direction under section 25A(9) protects against direct and derivative use, which is simply erroneous, and thirdly, the distinction between questions which expose a defence and questions relevant to a defence which I have outlined.


We would say that by referring to section 35A of the Judiciary Act that this is a case where the interests of the administration of justice both generally and in this individual case justify a grant of special leave and the reopening of the application. The matters of general importance are the implications of X7 in the case of applicants for stays, of which there are bound, if I may say so, to be many or at least occurring to many legal advisers to make such an application.


The other question of general importance is the question of the importance where there is no direct evidence, as your Honour Justice Hayne put it to me, that particularly affected this particular accused person that the question of the erosion of public confidence in the criminal justice system, in the absence of the normal kind of unfairness, given the illegal examination of this kind which is relevant in this case. We say, finally, your Honours, that this process is simply unacceptable, that the examinations are unlawful and, a fortiori, they ought not to be conducted in these circumstances. The process was calculated to produce a situation of potential global unfairness. As your Honours please.


FRENCH CJ: Thank you, Mr Bleechmore. We will not need to trouble you, Mr Neil.


This application turns upon the question whether the Court of Criminal Appeal erred in quashing the decision of the trial judge to grant a permanent stay of criminal proceedings pending against the applicant. The basis of the decision of the Court of Criminal Appeal was not affected by the subsequent decision of this Court in X7 v Australian Crime Commission & Anor [2013] HCA 29. No question warranting the reopening of the application for special leave is disclosed. The application to reopen the application for special leave is dismissed.


The Court will adjourn briefly to reconstitute.


AT 9.46 AM THE MATTER WAS CONCLUDED


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