Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors [2018] HCATrans 78 (9 May 2018)

Last Updated: 9 May 2018

[2018] HCATrans 078

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 WEDNESDAY, 9 MAY 2018, AT 10.19 AM

(Continued from 8/5/18)

Copyright in the High Court of Australia

____________________

KIEFEL CJ: Yes, Ms Abraham.

MS ABRAHAM: Before taking your Honours to a couple of passages in the judgments of the Court of Appeal and the court below, can I just refer to a couple of factual matters. I do not take the Court to it; it is simply to put the matters on the record so your Honours can find the references if need be in due course.

First, your Honour Justice Kiefel asked me yesterday about a series of paragraphs in respect to what had been described as the voluntary disclosures. I was cut off, I think, before I got to the last of the paragraphs that your Honour directed my attention to. They relate to Mr Strickland. I do not take your Honour to them; I simply give your Honours the page references as to where you can find the particular responses to this aspect.

In our submissions – that is, the submissions we filed in respect of Mr Strickland – it is at paragraphs 19 to 21. In respect of this matter, it is in the summary at the back of volume 6, from page 2002 onwards. In particular, at 2012 is the reference to the use of the committal of the material. Mr Strickland, as your Honours can see from that section, was one that spoke to the police voluntarily before the compulsory examination. The detail of that is referred to at page 1858 of appeal book 6.

Your Honours can see set out there denials in the same manner that is ultimately made in the later examinations. That matter is obviously relevant for the same reasons as we say the other voluntary statements are relevant, this one being before the event.

The second factual matter, your Honours will have noticed in our written submissions a reference to the chronology that has been filed by my friends in the Court. At paragraph 22 of our written submissions in respect of Mr Hodges, it being a joint chronology, we take issue with it being objective. We say it is selective, it is argumentative and it contains partial aspects to the evidence. We say the relevant chronology in respect of the procedural matters, the objective procedural matters, is in the Court of Appeal judgment which is not challenged.

Perhaps to give just one example, and again, I have taken the Court to it, there is no reference in the document to the advice given to the AFP by the ACC despite there being a whole lot of references to other matters. There is also a reference to a document called - I think it is the ACC guide to compulsory examinations - there is no reference in the document to the paragraph that says “derivative use is permissible”. So, in our submission, it is an argumentative document, not an objective and ought to be put aside as a chronology and the Court should work from the unchallenged procedural chronology set out by the Court of Appeal.

The third factual matter relates to a paragraph - yesterday Mr Strickland’s counsel took the Court to paragraph 6 in his written outline, where I notice at the bottom of the paragraph there is a suggestion that the Crown conceded in the Court of Appeal that there was forensic advantage from the police officers and that the police officers are still involved. We say there was no such concession by the Crown in the Court of Appeal.

GORDON J: In relation to both aspects?

MS ABRAHAM: Yes. Now, having put those matters aside, I was asked a number of questions yesterday about various aspects of the judgment of the trial judge. Can I take the Court to just some paragraphs in that judgment which, in my submission, are relevant to put some of the later comments in context and, with respect, what it does highlight is that some of the later comments do not sit with some of the earlier findings. Paragraph 309, page 2259, appeal book 7, is the rejection by her Honour of the validity of the determination.

EDELMAN J: Sorry, which paragraph is that?

MS ABRAHAM: Sorry, 309.

EDELMAN J: Thank you.

MS ABRAHAM: Paragraph 332, page 2264, paragraph 348, page 2267. That is important because, in my submission, her Honour found that the examinations in effect were lawful. Paragraph 428 at 2281; at 428 there is a finding that:

Although Sage was aware of the AFP’s various purposes . . . it does not follow that they were his purposes –

Of course, the relevant purposes, because of the unlawful aspect, are the purposes of Mr Sage, not the police purposes.

Whilst on that page, if one just goes up to the paragraph before, 427, her Honour does not find that locking in per se is an improper purpose. So neither the first instance judge nor the Court of Appeal, in my submission, made that finding or, rather, made the finding that it was. That, in my submission, is consistent with Seller, the passage that I took your Honours to yesterday – that is, Seller, the first of the Court of Appeal’s judgments.

GORDON J: Ms Abraham, if you take 427 you have to read the last sentence, though, do you not?

MS ABRAHAM: Certainly. It is relevant to the concept of – there has been argument about locking in somehow per se is improper. It is recognised by her Honour that it is, as the police’s evidence was, in effect, a necessary corollary of an examination that there is a potential for somebody to be locked in. But assuming of course that it was not valid – in other words, it was a special investigation – on that, with respect, if there had been an order in her Honour’s mind there would be no problem with the purpose being locked in.

BELL J: I think you also need to refer to paragraph 390, the paragraph in which her Honour finds that Mr Sage did not exercise any independent judgment and acted effectively as a rubber stamp.

MS ABRAHAM: I am aware of that paragraph, yes. I am not trying to shirk that, with respect, but in my submission - - -

BELL J: It was your submission about the significance of Mr Sage’s purposes which needs to be understood against that finding.

MS ABRAHAM: Except this, your Honour. Ultimately, if the findings are against him, that he had conducted the examination in certain ways, in our submission – I go back a step, that he conducted the examinations in certain ways, they are not findings relevant to the police. What her Honour is doing is in fact recognising that, that just because that is the police’s purpose does not mean that it is his purpose.

If one actually looks at the documents in respect of the reasons and the authorisations, it is not listed as a purpose. The purpose that is listed is the knowledge that these people might have. In my submission, because of that finding, the earlier finding your Honour took me to, one cannot then all of a sudden, “Well, hold on a second, then the police purposes somehow must be unlawful”. That does not follow. That is not what the unlawful findings by the Court of Appeal or her Honour were directed at.

Paragraph 430 reflects the change in the approach which we referred to yesterday and 447, which is at 2285, that is confirming there is no illegality in the examinations, that is, the conducting of the examinations. Her Honour’s finding of illegality relates to the non-publication order and in my submission one needs to look at any later findings in that context.

Importantly, though, while a good deal – before going on, in answer to your Honour Justice Bell’s question, it is important to recognise, as I said earlier, that the findings relate to Sage and not the AFP because on the evidence, whatever her Honour might have thought of Mr Schwartz, it was not his purpose to be had, so to speak, and she made no findings about that. On the evidence, in my submission, what occurred is the AFP followed the advice of the ACIC that they could examine persons who – suspects.

Now, in fairness to both the ACIC and [...] following that advice, we know that the Act does in fact encompass that prospect, that is, the Act, because of the way it is phrased, clearly encompasses the situation of persons likely to be charged. In my submission, that includes suspects and so when there is a suggestion that he is being cavalier, a passage your Honour took me to yesterday, it has to be in the context – if this is a proper examination, if it is a proper special investigation, then yes, even if you are a suspect, you are able to be examined. In my submission, IBAC in this Court confirms that because in IBAC the person was reasonably suspected of having committed the offence, yet there was going to be a public examination in respect to him.

BELL J: Accepting all that, Ms Abraham, one still comes back to the significance of her Honour’s finding that here the person charged with the responsibility in respect of the conduct of the examination acted as a rubber stamp at the behest of the senior investigating officer. Now, it does seem to me that one cannot overlook that in assessing her Honour’s conclusions at 880.

MS ABRAHAM: Your Honour, I accept that that is what her Honour said and I will come to the Court of Appeal in a moment, but on paragraph 880 can I make this submission. If your Honours take into account the findings about legality, that is, these were not unlawful examinations, et cetera, that her Honour has clearly found, in my submission paragraph 880 and some of the surrounding paragraphs belie those earlier findings.

With respect – meaning no disrespect to her Honour, it is in effect verbatim from written submissions filed by the appellants at first instance, made at a time before they stood up and changed their case. So in our submission properly read there is disharmony between what was originally found and the end result. But in any event we are in – this is an appeal and it is an appeal from that judgment. What my friends must establish is that there is error in the Court of Appeal and that is, in my submission, where we should be focused in respect to this matter.

Can I take your Honours to some paragraphs in the Court of Appeal? Your Honours, the fact that the case was pitched below in respect of the administration of justice aspect, requiring at least recklessness as an element is apparent from paragraph 5 of the judgment. That is at 4821 and repeated at 247 which is at 4918. In particular at 247, in my submission, it makes it clear that one is considering the term “recklessness” as obviously a distinct legal term to “negligence”, obviously negligence was not going to be enough.

Those recitations are consistent with the passage that we have quoted in footnote 69 of our submissions in respect of Mr Hodges, the passage from the transcript where that concession was made and the details which we have in our Hodges submission at paragraph 66 onwards. So as we said yesterday, any suggestion now that something else was meant, in my submission is incorrect.

Can I take you then to the particular findings in relation to recklessness? Paragraphs 108 and 109 - perhaps if it is of assistance the evidence of Mr Sage in respect of this is summarised at paragraphs 73 to 77 which is at 484 followed immediately thereafter by a summary of the evidence of Mr Bonnici who was counsel assisting in respect of this. So, it is paragraphs 108 and 109 where the court reaches its conclusion about recklessness.

In my submission, that conclusion is perfectly correct and, indeed, the foundation of it, namely no challenge to honesty and no evidence of awareness has not been challenged. I note for future reference in the reply submissions of Mr Hodges there is some reference that suggests that her Honour did make some findings. If one looks at the references, they are not relevant to that topic.

Now, bearing in mind that the two aspects of unlawfulness that one is dealing with are first the Court of Appeal either turned the finding below in terms of a special investigation, so they concluded that the purpose was for the investigation for the AFP. The second one relates to the non-publication or the dissemination order, or lack thereof, in respect of 25A(9).

Just pausing there, when considering the questions of egregiousness which have been debated over the last day, it is relevant to note, as the court does in 108, that the Director and the ACC have argued the contrary in respect to derivative use which is relevant to - and continues to argue, as we see here. If that is correct how can it possibly be said, with respect, that it is so egregious to not make an order that an otherwise properly instituted trial that involves no unfairness, on the finding of the court, a documentary trial where there is nothing in the brief that depends on the examinations for their probative value, how can that be so egregious.

The same, in my submission, applies to the issue of the other issue, that is, the special investigation. How could it be said, particularly given her Honour even found that it was not an unlawful examination, how could it be said, with respect, that that conclusion is so egregious as to warrant a stay as an abuse of this Court’s process?

BELL J: If I could take you back to the submissions that were made in the Court of Appeal and that you directed our attention to, where it was put that it would be necessary to show recklessness or, I think it was said, negligent impropriety. Now, as I understand what is put against you, why would not one read 881 in light of the earlier findings as an acceptance of negligently improper conduct?

MS ABRAHAM: Your Honour, with respect, paragraph 247 does not encompass negligence, because the last sentence:

Provided that the impropriety here was found to be either intentional or reckless, counsel argued, that would suffice –

BELL J: I think I understand the argument.

MS ABRAHAM: And that is what we say is consistent with that passage we have in our footnote 69. Our point is, in respect of the only two matters that are said to be unlawful, they are matters that are argued – continue to be argued, as we see here – and it could not be suggested that the arguments are not being put in good faith. If that is correct, in my submission, how can it be said that it is an abuse of this Court’s process that this occurred?

Your Honours, the issue of the determination seems to have been raised on the appeal. I am not quite sure how that comes within the terms of the grounds of appeal. We say, if need be, we rely on the judgment of the Court of Appeal, but that falls into the same category. Where does that get one? Both the trial judge and the Court of Appeal have said that is valid. So none of those matters, in my submission, gets you into the territory where one would be staying a prosecution as an abuse of process.

Perhaps just before leaving that page and topic, can I refer the Court to paragraph 112, where there is the reference to Bartlett. In Bartlett – Mr Sage was involved – there were no orders, as there were no orders here, and it was a matter back in the relevant time period. As the Court of Appeal correctly found, her Honour was incorrect to say that was post-charge; it was pre-charge. One does need to be very careful, in my submission, when reading the cases, to distinguish between the two, because we know there is a difference between the two. That supports his evidence that back then that is what he perceived to be the correct approach.

Your Honours, as I mentioned right at the outset of my submissions yesterday, we know from the cases that back then, in 2010, or pre-X7, there were clear instances where there was dissemination of material to police and to the DPP, and we know that there were unlawful examinations because they were conducted post-charge.

Can I take the Court to one judgment, and I do so because it is not referred to in our submissions on the basis it has been only published of more recent times, it being the subject of non-publication issues. It is a 2007 judgment. We have provided copies to the Court, I think. It is a decision of MAC [2017] NSWCCA 219. In this case, just to give your Honours a quick overview, what occurred was the police came upon a person who they clearly suspected was dealing in drugs. Obviously, they had very good evidence of that. He was taken to the ACC. He was examined. He was then arrested. There was an argument first that the evidence should be excluded, some evidence that had been obtained. When that failed, there was an argument that there should be a stay. This is an appeal from the stay.

If I could just draw your Honours’ attention to a couple of paragraphs. It is a judgment of her Honour Justice Simpson, and Justices Johnson and Fagan concurring. In paragraph 2 her Honour describes the law in the area as “in a state of evolution”. And, in my submission, that is not an unreasonable description of what was occurring – sorry, is a case in 2010, so we are talking again pre-X7 and pre-charge – just.

At paragraphs 55 and 56 there are the findings by the trial judge in respect to the admissibility issue – that is, the first ruling. And your Honours can see he considered it improper what had occurred. His conclusion, however, is at 60 and 61, applying the principles. He accepted the evidence would have been obtained nonetheless and the evidence was not excluded.

Jumping ahead, on the stay application, one of the grounds argued was the interests of justice type ground. A summary of what was before her Honour in the second matter – it was a different trial judge – is at 66. At 90 and 91 her Honour points out it is not to the point about the “cavalier” attitude because one is looking at a stay and what is required there. It is a different test. And she accepts what was conceded by the applicant that it is not a question of punishment.

In 91 she talks about the evidence could have come from elsewhere. That was “not the only route” that the evidence could have come from. At 98 – this is the argument set out at 97 – it highlights two matters stand in the way. And she explains or discusses Lee – that is Lee (No 2) in this Court - and recognises the importance of the lawyers, the actual prosecutors, not having the material.

GORDON J: There was no dissemination in this case, is that right?

MS ABRAHAM: No dissemination to the DPP. There was dissemination to police officers that ought not to have had it.

GORDON J: Were they taken out of the picture as part of the ameliorative effect?

MS ABRAHAM: That I cannot remember. I will just get my junior to check that. It definitely was not to the DPP though. In 99 she makes a reference to IBAC. In 104 she emphasises that you have to actually look at the effect and, in my submission, that is what it is one is doing. As a matter of interest, grounds 5 and 6 relate to the determinations. I do not take the Court to that. I just refer to that, given what has occurred to date.

The unfairness in the trial begins at 119. Her Honour discusses, as your Honours can see, Lee (No 2) - makes the point that in Lee (No 2) what the Court did do is say that what should have happened is a temporary stay pending the removal of the prosecutors. That was not in issue in this case of course, but obviously seemed to be a remedy and an appropriate remedy in that factual scenario.

GORDON J: In Lee (No 2) at 44 it was not just the prosecutors; it was also the investigating team went out.

MS ABRAHAM: No, with respect, your Honour.

GORDON J: I am pretty sure - prosecutor and other DPP personnel.

MS ABRAHAM: Yes, that is not the police. So, her Honour’s description of what occurred in Lee in my submission is correct. At 127:

While I accept that a “clean” prosecution team can be engaged, the knowledge gained by the investigating police cannot be expunged from their minds. So it was in Lee v The Queen. Nevertheless, a new trial was ordered.

When she talks about:

Steps have already been taken to that end -

I do not know if that includes the police or not. Clearly the DPP – yes, the prosecutors are different prosecutors. In my submission, when one is looking at again - - -

GORDON J: Well, 128 is the point - “conducting the trial” limited to the DPP, or does it extend to the AFP?

MS ABRAHAM: That I do not know. I will see if I can find – it is not in the judgment. It is definitely the DPP. I do not have the first instance judgment at hand. In my submission, that judgment is obviously correct, but what it does is highlight that what one needs to look at is, in effect, the consequence. It was talking about behaviour in respect to 2010, what we are talking about here. In my submission, what one needs to do is consider this as I mentioned the other day, the other cases, for example, Seller, Harper in the Queensland Court of Appeal, which were all dealing with matters back then.

In respect of Harper, for example, and I think I mentioned yesterday it was post-charge and there was material found as a result of the examination from a search warrant, but in respect of that nonetheless the appeal against conviction was dismissed and the court found that it had not been established there was a miscarriage by the presence of the investigating officers at the examination because, amongst other things, the material would have been found in any event. That is paragraph 65 of the judgment which is [2015] QCA 273.

Similarly, the Queensland matter of Golding and Sander – Golding and Sander, I cannot think of the third accused - there are numerous stay applications there and an appeal against conviction. The charges – the examinations were post-charge - that is [2017] QCA 149. There was no actual prejudice shown in respect of that and no miscarriage was found and special leave was refused.

Your Honours, I refer to those cases because as I said, in my submission it is important not to lose sight of what one is dealing with here when being concerned about the submissions about how egregious this conduct is. What one should actually be looking at is the Court of Appeal judgment, have my friends established error in the Court of Appeal. They have not challenged the findings in respect to the recklessness, in my submission. Rather, the approach has been well, “recklessness” actually means something else and she was not really meaning the recklessness in the legal sense, quite contrary in my submission to what was run below.

The important thing there was no evidence, as I said, no challenge that there is no evidence about awareness and that she was found to be honest. There is also no challenge in respect to the other aspect of the basis of the stay, that is no use was made of the material. There has been no suggestion that what the court has recited is not correct in my submission, because it plainly is.

Ultimately it comes down, in my submission, to an issue of no error has been established. The court having found error concluded on a proper consideration, including that in respect to the administration of justice ground, that there was no unfairness actually obtained - that is in the judgment at 312 - that there is no proper basis to take that extreme step that the appellants had not established that that ought to occur.

There had been some discussion yesterday about what means could be used in relation to the trial. The court at paragraph 315, although they said there was no use of the material, so there was in fact nothing to – there was no real risk, but even if there was the fresh prosecution team and the police are enjoined from being involved – sorry, enjoined in saying to the prosecutors, the new prosecutors, what it is that they had learnt if they remembered.

Your Honours are aware that from what I said yesterday the bandying around of numbers by my friends does not help. X number of people might have had access to this; X number of people might have had access to that. If they are not involved, did not read it, have not used it and there has been no attempt to do anything other than say we cannot unscramble the egg, well, the bottom line is it was unscrambled because undertakings have been given, including from people that had nothing to do with the matter that happened to have technical access, whether they were police as in investigating officers, or not. So the suggestion that there are all these people with this information, in my submission, is not correct.

But most importantly, in my submission, they have given undertakings. Why should the Court not accept that they will abide by their undertakings? There is no basis, in my submission, to conclude that they would not and my friends have not established any. So in our submission when one is focusing on the true questions that arise in this appeal, that is has error been established in the Court of Appeal, my friends have failed.

Those are my submissions. Just before I sit down, one matter - a submission was made yesterday - before the learned Solicitor-General stands up - that the DPP had suggested that the submissions of the ACIC are not relevant. That is not what our comment in the written submissions is supposed to reflect. What it reflects is that we were not filing a notice of contention because we say on the judgment of the Court of Appeal no error has been demonstrated. In fact, lots of matters have been conceded or not challenged.

BELL J: Your submission a little while ago was to question the basis for the submissions made yesterday on Mr Hodges’ behalf concerning the determination and its lawfulness and your submission was that the appeal is from the decision of the Court of Appeal and, as you say, you have not filed a notice of contention. So, are we to understand that you accept the concurrent findings below which include the finding of unlawfulness commencing at 207 of the Court of Appeal’s judgment?

MS ABRAHAM: Our argument is, we have not challenged that for the purposes of 207.

BELL J: So, in particular you accept the concurrent finding at 209 which echoes her Honour’s finding at 880.

MS ABRAHAM: Can I put it this way; we had not filed a notice of contention. We do not necessarily accept it is correct. We say it is not

necessary to go down that path for the purpose of determining this appeal because we say, even given that finding, that my friend’s do not succeed because they have not established error in the findings of the court.

GAGELER J: You present no fall-back position.

MS ABRAHAM: If your Honour - - -

GAGELER J: I mean that is the point of a notice of contention. You either do or you do not.

MS ABRAHAM: Yes, yes, absolutely. We have not. I am not being coy about it. We have not and we have said that we do not need for that reason, because even accepting those findings against us, for the purposes of argument, it is not enough given there was no recklessness et cetera and no use and the concessions about that.

KIEFEL CJ: Yes, thank you, Ms Abraham. Mr Solicitor, what has just passed between the members of the Court and Ms Abraham, perhaps puts your notice of contention in a different light. It is apparently not the Director of Public Prosecution’s notice of contention.

MR DONAGHUE: No, indeed, but nevertheless the entire argument to this point on the appeal is being predicated on the proposition that my client, the second respondent, acted unlawfully in one or other of two ways, either by disseminating information that should not have been disseminated because a direction should have been made under 25A(9) or because there was no investigation. If we are right, that both of those bases of unlawfulness cannot be made good, then the whole foundation for the application for the permanent stay would fall away and your Honours should therefore not disturb the order that was made by the Court of Appeal.

BELL J: But in circumstances in which the prosecutor does not embrace the notice of contention, what is the basis for the Commission to be heard?

MR DONAGHUE: Your Honour, I understood Ms Abraham to be saying that the DPP has not filed a notice of contention. I did not understand her to be saying that she does not embrace or in any way opposes the arguments that have been made.

BELL J: A few moments ago, Mr Solicitor, you would have heard the Commonwealth Director express some surprise at the submissions advanced on Mr Hodges’ behalf on the basis that what was before us was an appeal from the Court of Appeal and it is clear there is no challenge from the Director, or no intention to seek to have the decision of the Court of Appeal affirmed. Rather, it is embraced and the concurrent findings there are embraced, concurrent findings that the Commission seeks to challenge.

MR DONAGHUE: Your Honour says “embraced”. I thought Ms Abraham said “not challenged”. They are challenged by us.

EDELMAN J: In the absence of a notice of contention by the DPP, they cannot be embraced.

MR DONAGHUE: They cannot be embraced, they cannot be challenged, they cannot say anything about them. Your Honours, can I put it this way: the Commission is here because we were named as a respondent in this Court by all of the appellants. They did that because we applied for and, over opposition, were granted leave to intervene in the Court of Appeal, and no one has ever sought to disturb that order. That order having not been disturbed, we are a respondent and we do not need to establish our standing.

There is, as far as I am aware, no principle that a respondent needs to establish an interest in defending the appeal. We advanced arguments in the Court of Appeal that were unsuccessful. They are arguments that are relevant to this appeal because, if they are right, the appeal must fail. In our submission, that is sufficient to justify our presence.

The other point we would make, your Honours, is that, just as a matter of fairness, our friends are taking the point far too late. Having named us in the special leave application, the Commission filed submissions that said, “We do not seek to be heard on the question of whether special leave should be granted, but that if leave is granted we will file a notice of contention”. And here it is. It was drafted, it was attached and provided at the special leave stage.

Nothing was said at the special leave hearing opposing that course of action. Then at the end of the hearing, when special leave was granted, your Honour said, “How long does the case take?” The appellant said, “We think about a day”. The Commission stood up and said on the notice of contention, “We think there is another day’s worth of argument,” and again nothing was said. We filed submissions in accordance with the notice of contention, in accordance with the orders of the Court, and then in reply to those submissions, for the first time, it said, “You should not be here”.

EDELMAN J: It is unsurprising that the argument is not made until that stage, because it would have been futile for that argument to have been made if the DPP had just simply filed a duplicate notice of contention and relied upon all the submissions of your clients.

MR DONAGHUE: But that cannot happen, your Honour, because of the way things have now played out. There is no opportunity for there now to be engagement between my client and the DPP on the question of whether the Director needs to file a notice of contention of that kind so these arguments can be pursued. That is all past because of the way that this matter has unfolded.

Your Honours are now in a position where, if we are not allowed to be heard on this point, you will be asked to decide the case on an assumption that we say, as a matter of law, is wrong and where no one will now have an opportunity to consider whether an alternate path should be taken to put the matter before the Court.

KIEFEL CJ: The Court might adjourn for a few moments to decide the course it will take.

AT 11.08 SHORT ADJOURNMENT

UPON RESUMING AT 11.15 AM:

KIEFEL CJ: Mr Solicitor, we will hear argument from you and then the Court will reserve its position on the question of standing in the respects in which you would be aware.

MR DONAGHUE: If the Court pleases. Your Honours will appreciate that by the notice of contention, which I do not need to take your Honours to but you will find a copy at page 4955 of the appeal book, the Commission challenges both of the findings of unlawfulness made below. That is, the Commission submits that there was a special investigation, that the questioning and dissemination of material obtained from the appellant during their pre-charge examination was lawful and therefore that the findings in the court below based on the proposition that the ACC failed to comply with the statutory steps required by the Act cannot stand because they are findings based on a misconstruction of the Act.

In putting that submission, we are not blind to the proposition that acceptance of that submission might require the Court to travel some distance from some of the provisional views that were expressed in the exchanges between the Court and counsel yesterday, and I propose to try to take the step along that path in a methodical way which will be starting addressing the relevant materials in a chronological order, which means I will not arrive at the statutory text until the end of that pathway, but that is our ultimate focus.

But before I embark upon those steps, which your Honours will see are through the material set out in paragraph 2 of our outline, can I just deal briefly with two preliminary points, and I will try to avoid any repetition of points that have been made before. The first concerns the nature of the finding that has been made as to the purpose for which the examiner exercised his power, and your Honours are well familiar with paragraph 880 in the trial judge’s reasons. It is on page 2367. In its terms that finding looks like a finding about the purpose for which the power was exercised, which must therefore be understood as a finding about the purpose of the examiner, given that it was the examiner who exercised the power. So the proposition is:

This case involves the deliberate coercive questioning of suspects, because they had exercised their rights to decline a cautioned police . . . was used for the very purpose of achieving forensic disadvantage to the ACC accused, and advantage to the prosecution –

Now, yesterday your Honour Justice Gageler linked that finding to paragraph 846 and I think the argument then proceeded on the basis that the purposes referred to, the illegitimate forensic purposes, were the two paragraphs – findings identified in 846 which were locking into a version of events on oath and assembling the police brief.

In 846 it is, we submit, evident that the finding her Honour was making was a finding about the AFP’s purposes. The finding is expressly made in the middle of 846, the AFP’s purposes were, one, to lock in, and two, to help the AFP assembling briefs. Then in the next paragraph, in 847, her Honour says:

Although Sage was well aware of the AFP’s purposes, it does not follow that they were his purposes. Far less does it follow that the statutory examination power was exercised improperly, in an administrative law sense.

So her Honour was distinguishing between the AFP’s purposes on the one hand, and Sage’s, and refusing to attribute the AFP’s purposes to Sage. If we then ask, well, what were Sage’s purposes, in my submission, to find that your Honours need to go much earlier in the judgment, back to page 2280, paragraph 423, helpfully under the heading “Sage’s purposes”. What you find there is her Honour recording that:

Sage consistently said that the purpose of the examinations was to get witnesses to tell the truth, and be forthcoming about their knowledge of the activities about which they were being examined. If telling the truth involved suspects making admissions of wrongdoing, so be it.

Now, your Honours will recall that her Honour also found, at paragraph 36, that Sage was honest. She thought he was mistaken, careless in various ways, but honest and his consistent evidence was to that effect.

If your Honours then go on to paragraph 426, there is again reference to the “AFP’s purposes” and two of the appellants are identified in the context of the locking-in allegation and Sage said he knew about that, that that was the AFP’s objective but he would not accept that he even knew that in relation to two of the others. Then, at 427 – I think your Honours have seen this – where her Honour accepted that locking in was not necessarily improper. But then in 428, as in the 847 reference:

Sage was aware of the AFP’s various purposes . . . it does not follow that they were his purposes, or that he exercised his powers to summon and examine the ACC accused for an unlawful purpose.

Now, if your Honours then go back a page to paragraph 412, you will see an express finding that the AFP officer’s - known as Schwartz:

view of the purpose of the examination is not determinative as to whether the examinations were conducted for an improper purpose –

and it is only a page or two before that that one finds her Honour making what I will call the rubber-stamping finding that your Honour Justice Bell has mentioned.

So, in the sequence of the judgment, her Honour examines what the AFP officers had said, makes the rubber-stamping finding in the context of who was going to be examined and when, then looks at why the AFP wanted that to happen and identified the two purposes, and then refuses to attribute those purposes to Sage, leaving us, in my submission, in a position where the only finding about Sage’s purpose is his consistent evidence at 423 as an honest witness. Now, that might lead one to ask what do you then do with 880, what is the explanation for 880 if he was trying to get witnesses to give an honest account of their - - -

BELL J: Is not the explanation that if in truth he acted as a rubber stamp and as Mr Schwartz gave evidence on his oath and her Honour ultimately did not make a finding that Mr Schwartz was dishonest - she records his evidence that he was the man who determined who was to be examined – that is, that extract of evidence is shortly before the finding that Mr Sage acted as a rubber stamp, those findings seem to inform a conclusion that in truth what was happening here was that the AFP was making use of the ACC’s facility to compulsorily examine and that in turn feeds into the concurrent findings that are reflected in 880?

MR DONAGHUE: In my submission, your Honour, the difficulty with reading the reasons in that way is twofold. One, at paragraph 412, her Honour expressly finds that Schwartz’s view of the purpose is not determinative as to the purpose of the examination and then at 847 she comes back to Sage’s awareness of that purpose and denies that it led to impropriety in an administrative law sense. So, in my submission, her Honour appears to be rejecting - - -

EDELMAN J: At 412 the sentence is:

is not determinative as to whether the examinations were conducted for an improper purpose in terms of statutory legality.

MR DONAGHUE: Yes.

EDELMAN J: Is that talking about the possibility of an improper purpose existing outside lawful examinations?

MR DONAGHUE: In my submission, it is talking about whether or not the exercise by the examiner of his statutory power was vitiated, was not a lawful exercise of the power and her Honour says no, at both 412 and – 847 is even clearer, referring to “in an administrative law sense”. In my submission, the better explanation for the 880 finding is that 880, I think, was first introduced in this appeal by Mr Walker as a summary section of the judgment and it does seem to have that character.

If your Honours look at the words of 880 and then go back and compare them to what her Honour said at paragraph 41 of her judgment which starts at page 2193, you will see there a summary of, in paragraph 41, the ACC’s argument and it steps through a number of steps, arguments that were being advanced.

Then one gets to 41(g) on page 2194 which uses exactly the same language as 880 - almost identical language. But now the problem, we submit, is that if you go higher up in paragraph 41 you will see a series of arguments advanced that the determinations were not valid determinations. That argument failed. The examinations were unlawful because they were not conducted for the purposes of a special investigation.

That argument failed before her Honour. It succeeded in the Court of Appeal but it cannot have been what she meant in 880 because she rejected the argument. The examinations were unlawful because they were committed for an improper purpose. That argument failed. That is the argument we have just been talking about.

The only point that succeeded was the unlawful dissemination point. So, her Honour undoubtedly did find that there had been a failure to disseminate unlawful but when one tries to explain that in terms of the examination power having been used for the very purpose of achieving forensic disadvantage there is a mismatch and, in my submission, if your Honours are tasked with assessing what finding has been made about Sage’s purpose, you should not preference a conclusion paragraph lifted from submissions made on the basis of a whole number of arguments that did not succeed, over the finding at 423 as to what Sage’s purpose was and the appeal should therefore be determined on the footing that the purpose was as Sage said that it was and not otherwise.

BELL J: So that requires a departure from the findings of the Court of Appeal at 211.

MR DONAGHUE: Well, your Honour, in my submission - I am glad your Honour asked me that because I meant to take your Honours to that. If your Honours go back to that paragraph, that paragraph, in my submission, is about a different improper purpose. So, the improper purpose language is floating around in these appeals in a couple of different places.

One is in relation to whether Sage was doing this to procure a forensic advantage but here, in these paragraphs, 209 to 211, the court is considering the argument that the examination powers were being used for an extraneous purpose, being to assist the AFP and I think it is fair to say that the appellants accepted yesterday, in answer to a question from Justice Gageler and then later from your Honour Justice Gordon, that if there was a valid special investigation on foot, it could not be said that it was improper in the conduct of that valid special investigation to assist the AFP.

BELL J: Yes.

MR DONAGHUE: So the point that is being addressed by the Court of Appeal at 209 to 211 ends up turning not on any question of finding fact about Sage’s purpose but about whether or not there was a valid investigation on foot and that is of course one of our points in the notice of contention.

BELL J: Yes. There is a factual dimension to it, is there not, insofar as a view that Mr Sage was acting as a rubber stamp and not bringing any independent judgment to bear on the decisions about who was to be examined, what questions were to be asked and the like feeds into the Court of Appeal’s conclusion that it was not contemplated that the product would be used by the Commission itself. It was not used. All of that informs the conclusion, as I would read it, at 211, with respect to the examination not being for a purpose authorised by the Act.

MR DONAGHUE: That may be so, your Honour, but all of that is predicated upon the proposition which we contest, that in order for the ACC’s special investigative powers to be available one needs to have not only a decision by the board that the ACC should investigate the matter and a determination that that investigation should have special powers but also a separate factual question about whether the ACC is itself using in some way that information and if that is wrong - - -

BELL J: Yes.

MR DONAGHUE: - - - which I will seek to establish later it is, the factual dimension, as your Honour puts to me falls away because there is no need for there to have been bodies on the ground within the ACC conducting the investigation. So, the fact that there were not investigators of that kind goes nowhere.

BELL J: Just so I understand where the argument goes, I appreciate the argument you make about the, as it were, co-operative relationship between the ACC and investigative bodies such as the AFP, but just looking at the facts that inform the decision that is the subject of appeal, is it put on the Commission’s behalf that for the Commission to lend its compulsory examination facility in the way that her Honour found had occurred here, that is that Mr Sage acted as a rubber stamp and that people who had declined under caution to answer any question about which they were reasonably suspected, could be, at the instigation of the officer in charge, compelled to answer questions with a view to obtaining the advantages of locking them in to an account and assisting in refining the process of going through the several million documents in their possession.

MR DONOGHUE: Substantially, but with some qualifications, my answer is yes. So that there is nothing in our submission wrong with the AFP saying “We are conducting an investigation into X activity, we are having difficulty with that investigation for whatever reason including perhaps the 80 million documents and we would be grateful if would exercise your coercive powers to assist”.

Now, at that point, the ACC cannot examine or cannot do anything unless to assist would be to advance an investigation that the board has determined is a special investigation and, as your Honours have seen, that is authorised in broad terms. But it is necessary for it to be within the boundaries of that power.

Now, there may be administrative law challenges that could be made in the context of the kinds of facts that your Honour is putting to me. One can readily see how it might be said that an examiner needs to properly engage with the statutory scheme. But insofar as there was an argument about that below, it seems to have been the improper purpose argument which is the subject of the paragraph I just took your Honours to and her Honour refused to find a vitiating improper purpose.

So we do not - in my submission the position is that there is no – there was no successful challenge in an administrative law sense to the way the examiner exercised his statutory powers. There was a successful challenge in the Court of Appeal to the existence of what was said to be a factual precondition being the existence as a matter of fact of an ACC investigation and that is our notice of contention ground 2.

EDELMAN J: Just on the purpose - just so I understand your submission, you accept that the AFP had the two purposes, you accept that, as the Court of Appeal found, that the trial judge had found the investigator knew that that was the ACC’s objective - - -

MR DONOGHUE: The examiner knew.

EDELMAN J: The examiner knew that that was - - -

MR DONOGHUE: Yes, I think for at least two of them, yes.

EDELMAN J: - - - that it was their purpose and you say that the examiner’s purpose was to assist the AFP.

MR DONOGHUE: No, I do not say that, your Honour. I say the examiner’s purpose was the finding at paragraph 423. His purpose was to find out what they knew about the allegations, to get them to tell the truth about their knowledge even it involved making admissions of wrongdoing. That was his purpose.

EDELMAN J: But one of the other purposes was also to assist the AFP, or not?

MR DONOGHUE: Well, there is no finding to that effect.

KIEFEL CJ: Well, there is a finding by the Court of Appeal at 211 to advance the AFP’s investigation.

MR DONAGHUE: Predicated on the proposition that there was no ACC investigation. So if there was an ACC – in my submission, one cannot - - -

EDELMAN J: Yes, but on the assumption that there was – and I realise that part of your submissions is going to contest that, but, on the assumption that there was no ACC investigation, the finding of the Court of Appeal is that the purpose of the examiner is to assist the AFP.

MR DONAGHUE: Your Honour, if I am wrong and if there was no ACC special investigation then the examination cannot have been conducted for the purposes of that examination, and really the only logical explanation that is left is the explanation reflected in the finding at 211. But, in my submission, if your Honours were - - -

EDELMAN J: And that that finding at 211 would then pick up the two purposes of the AFP, because the purpose of assisting the AFP must be a purpose to assist them for their purposes.

MR DONAGHUE: I think that is right, but what I am contesting is the proposition that that is a finding against me if the whole premise for it evaporates and there is actually an ACC special investigation, then, in my submission, that would have flow-on consequences.

GAGELER J: Mr Solicitor, this may be a particularly technical point, but if you take the finding at paragraph 423 for what it says at face value, does that give you what you need to fulfil section 24A and to make the examination that is conducted for the purposes of a special ACC operation investigation? You might be right, there may have been a special ACC operation investigation, but that finding about Mr Sage’s purposes is not a finding about him conducting the examination.

MR DONAGHUE: Your Honour, on the third line of 423:

consistently said that the purpose of the examinations –

An examination under the ACC Act is a word that applies only to an examination of the kind identified in section 24A and following a Part II examination. In my submission, what that finding means is that in summonsing people and compelling them to give evidence before him, what he was doing was for the purpose of a 24A investigation. Was there one? The finding of fact below is there was. The 2008 and 2010 determinations, it was argued that they did not extend to embrace the questioning of the appellants, and that argument failed, and no one has brought up that argument before the Court, so my answer is enough for.....

Your Honours, I am conscious that I have a lot of ground to cover. The other preliminary point that I would seek to make very briefly is that there was some discussion yesterday around the propriety or otherwise of exercising coercive powers to examine suspects, particularly to examine suspects who have refused to speak to the police.

Your Honours may recall that, initially, for the large bulk of the long-stay hearing in this matter, the whole argument the appellants were advancing was that, as a matter of construction, the ACC Act does not authorise you to examine suspects. That was squarely in play; that was what all the evidence was about.

Then, on the first day of oral submissions at the conclusion of the evidence, that argument is abandoned. So the appellants stopped advancing the proposition that you cannot properly under this Act examine a suspect, and they were, in our submission, right to do so because the argument is almost indistinguishable from an argument that was advanced to your Honours in the IBAC Case, where it was said that the general words of a person may be examined and should be read down to exclude someone who is suspected of crime. Your Honours unanimously rejected that argument.

I would also make the perhaps obvious point that, once Parliament authorises the abrogation of the privilege against self-incrimination, logically it must contemplate that a person can be asked questions about their own criminality, because if you are only going to ask them about someone else’s criminality you do not need to abrogate the privilege against self-incrimination.

So it is inherent within Parliament’s decision to abrogate the privilege that the subject matter of the examination may transgress somebody’s own offending. So, in my submission, to the extent that some of the answers our friends gave yesterday suggested that there was something objectionable under this statutory scheme in examining suspects, and I think particularly in answer to some of the questions from your Honour Justice Bell there was a flavour of that, that is an argument that was put but given away.

Now, returning then to the main focus of our submission, we submit that the central issue that confronts the Court on the notice of contention concerns the identification of the balance that the Act draws between, on the one hand, the interests of the community in investigating and prosecuting serious crime and, on the other hand, the rights of the person who is the subject of investigation. Plainly, there needs to be a balance between those two matters and the question is where has that line been drawn?

That is an issue, we submit, on which the parties are in fundamental disagreement, essentially because, in our submission, there is a disagreement about the kind of body that the Commission was created to be and what it was intended to do.

Our friends say – and you probably do not need to go to it – in paragraph14 of their reply to the contention that the primary function of the Commission relates to intelligence gathering, priority setting, co-ordination, understanding methodologies, that is, they paint the Commission as primarily an intelligence-gathering and co-ordinating body.

From that premise they then say there is no inconsistency with interpreting 25A(9) as stopping you getting information about suspects to law enforcement because that can sit together with this intelligence-gathering role. The Court of Appeal, no doubt in answer to a similar kind of submission, accept it. So in paragraph 66 of the Court of Appeal’s judgment your Honours will see the court distinguishing a judgment of the New South Wales Court of Appeal in SD. They distinguish that case where Justice Basten had found that a primary purpose of the NSW Crime Commission was:

to ‘enhance the likelihood’ of criminal convictions. In the case of the ACC, by contrast, the securing of convictions is at best incidental to its statutory functions.

The only reference in support of that is section 7C of the Act which, in our submission, does not support it for reasons that I will develop. What your Honours will see, back over the previous page, in the long quote from SD is that in the middle of the second paragraph Justice Basten found, correctly, that:

A primary purpose of the 1985 Act is to enhance the likelihood of the laying of charges and the prosecution of such charges -

and having identified that primary purpose his Honour recognised the potential for section 13(9), which is identical to 25A(9) – they are exactly the same – he recognised the potential for 13(9) to cut against that statutory purpose and for that reason construed that obligation in a way that would not bring it into tension with the primary purpose of the body.

Now, we do not advance here the answer that Justice Basten gave the matter of statutory construction, which was to say that “publish” does not mean publish to the police or prosecutors. But we do say that his Honour was correct to recognise the tension and the important role of the purpose of the body.

The task that I am about to undertake is to seek to persuade your Honours that, as with the New South Wales Crime Commission, it is clearly the case that the mischief to which the creation of the predecessor of the ACC was directed was responding was the problem of effective law enforcement against persons who engaged in serious and organised crime. The Commission was created to be a law enforcement body to assemble evidence to make it easier to prosecute and convict persons who engage in crime of that type. That is what it was created to do.

While it is true that there is still a balance to be drawn in the Act between the rights of the suspect, on the one hand, and the interests of the community it is not a balance that requires the complete indemnity of the suspect from any adverse consequences arising by reason of a commission investigation. To the contrary, the point of a commission investigation is to have certain adverse consequences for a suspect in that the point is to strengthen the case, the material that is available to be used in a prosecution.

So the balance is to be identified by reference to ensuring that, while that is the statutory purpose of the Commission, it cannot do that in a way that prejudices the fair trial. In our submission, where the court below went wrong in this case is by focusing on the words “may be charged” in 25A(9) and not focusing sufficiently on the meaning of the words “prejudice a fair trial” because there are, in our submission, many things that the Commission can do that might have consequences for a trial, that might affect the way the trial is conducted such as, for example, by helping to sort through the documents that are already in the possession of law enforcement.

That is a derivative type – a weak derivative use of evidence perhaps constraining some forensic choices available that do not constitute prejudice and at the heart of that submission – and I will endeavour to make this good – is the proposition that there is a critical line between persons who have been charged and persons who have not been charged in the context of Commission investigations, and it is not a line that arises because of the words “may be charged”.

Obviously the obligation can apply both sides of the line. But it is not the same obligation for this reason, that once the person has been charged X7 and Lee (No 2) in particular, and IBAC all identify as one of the relevant governing principles – companion principle, if I can call it that – being the principle that a person who is accused of a crime cannot be required to assist the prosecution to discharge their burden.

But the judgment of the Court in IBAC refused an attempt by the applicants in that case to extend the companion principle pre-trial. So, when one is asking the question is there a risk of prejudice to a fair trial, if you ask that question post-charge, you answer it consistently with the companion principle and there will be a number of things that cannot be done, as the judgments of the Court made clear.

KIEFEL CJ: That is because the judicial process is engaged at that point. That is the defining point.

MR DONAGHUE: The defining concept. So that was the defining line for contempt of court and then as the law in this area has evolved the same defining line was drawn in IBAC’s Case. So, the content of the answer, is there a risk of prejudice, is different pre and post-charge and IBAC refused the very extinction upon which the argument in this case depends. So that is where I am going, and I will try to get there as quickly - - -

EDELMAN J: Will the consequence then of that be that a decision to charge can be made based upon the conduct of examinations?

MR DONAGHUE: Your Honour, no doubt there are particular obligations on prosecutors about prosecutorial duties about discharging their functions properly and prosecutors would need to take account of that in the context of the Act so that if prosecutors had effectively decided we will prosecute this person but we will hold off implementing that decision so that we can exercise the power then one would not struggle to see how an argument could be advanced about improper purposes there.

But, as your Honours would appreciate in this case, two of the appellants, there were 14 months passed between the examination, and one of them I think was 27 months; the shortest period was seven months. So we are not on the facts of this case anywhere close, in my submission, to that kind of scenario.

Your Honours I hope have in front you a bound volume of materials. All of this is material that was already on the list of authorities, so if your Honours have worked from other versions of these documents you have them already. But we gave you the bound version in the hope that I could save juggling of papers and move through it quickly.

KIEFEL CJ: Will you be spending much time on the much older Commissions and - - -

MR DONOGHUE: I do not want to spend a lot your Honour, but they are, in my submission, important because what I am going to endeavour to show is there was a problem identifying, dealing with, prosecuting and convicting organised criminals. It was a problem identified by Costigan and Stewart. Parliament decided what we need to do is create a permanent body to continue the work of Costigan and Stewart and - - -

KIEFEL CJ: I think this is history well known to the Court.

MR DONOGHUE: Well, your Honour, I am sure that - - -

KIEFEL CJ: What point do you want to make apart from pointing out how important it is?

MR DONOGHUE: Well, I am not seeking to go to it for that purpose, your Honour. Can I try to do it quickly and try to make it – so, for example, in the Costigan report, the first reference I was going to take your Honours to is 2.10, paragraph 2.10 which is just behind the tab. And what you see there is that the way Costigan conducted his operations involved very close liaison with prosecutors and law enforcement. The whole – indeed, such a close relationship that Costigan asked to have a prosecutors’ office established so that he could flick material backwards and forwards to the prosecutors as crime was uncovered for the purpose of – so he talked about the “flow of ideas, information and understanding” in paragraph 2.10, special prosecutors are established, Mr Gyles and Mr Redlich, and he communicated freely with all of these bodies.

And then you see in 2.11, he conducted hearings, he invited other law enforcement agencies to come to the hearings, corporate affairs people sat in when they were investigating particular matters, lots of matters were prosecuted arising out of that. Costigan at 2.12, lent his investigative powers to law enforcement so you had a police investigation into illegal bookmaking, they needed help in various respects, Costigan investigated to assist. Now, with this he had splendid results.

These Commission reports, the two we have given you extracts of, both then contain chapters directed to the idea that there should be a standing crime commission and make recommendations about how it should work. And, indeed, at 3.01 in the Costigan report, you can see him noting that the intention was the Commission would take over his investigation, his staff, his premises, his equipment, his database.

So, in a very real sense, when the National Crime Authority was created, it was created using the very same people and premises, we say methodologies, that had already been established through these royal commissions. And it was not quite obviously - and I do not want belabour the point - there is no notion of ring fencing by non-publication orders, the product of these coercive investigations of criminal activities. The idea that - the model was that 25A(9) should require any suspect who is suspected of crime to have their evidence insulated from prosecutors and investigators is the anathema to the whole model that Costigan and Stewart employed.

So, I do not want to over-egg the point but at 4.03, for example, you see Costigan saying he communicated with authorities about offences on an almost daily basis. Stewart was to the same effect, and perhaps given the time I will not take your Honours there. Stewart, your Honours might note or might know, was the first Chair of the National Crime Authority as it happened, and his focus was very much again on obtaining evidence.

Could I just ask your Honours to note one reference in the Stewart report which is behind tab 2. So at the start of chapter five, which is all about the Crime Commission, you can see on the second half of the page a list of things that it would do. The second bullet point is:

obtain evidence which police cannot obtain, thereby ensuring convictions of organised criminals -

And then in the sections of that chapter that follow there is a heading for each bullet point and you see the heading that corresponds to the second bullet point, near the bottom of 773 and he talks about overriding the right to silence and at the top of 775 and 785 are the two particular references I give your Honours.

But it is all about getting evidence principally by examining minor players who are people who may be charged because they are criminals. They have committed criminal behaviour, but in the course of committing their criminal behaviour, they know about the activities of more senior criminal figures and so, in the course of incriminating themselves, they also incriminate others and the investigation proceeds in that way.

Our point is that if a risk of being charged oneself requires the insulation of the evidence so it cannot be disseminated to prosecutors or investigators, you cannot do that. You can never move from the criminality of the low-level figures to the high-level figures because the relevant information is never passed on.

Now, your Honours, can I interrupt the chronology to take the Court briefly to Sorby’s Case with which I am sure your Honours are familiar, but our friends keep talking about the Hammond principle and grounding their argument in that notion. Sorby was actually a challenge to Stewart’s Commission and it was decided by the Court shortly before the NCA Act was enacted and it concerned in part the validity of legislation that was introduced just after the decision of the Court in Hammond because the Court had raised questions about whether the Royal Commissions Act actually did abrogate the privilege against self-incrimination.

Your Honours will see the challenge on behalf of Mr Sorby was argued by Chief Justice Gleeson in his former incarnation as a silk and he, amongst other things, challenged the validity of section 6A, which was the new provision your Honours will see at the bottom of page 295 of the report. The relevant provisions are subsections (2) and (3).

Subsection (2) made it express that the privilege against self-incrimination was abrogated and subsection (3) said:

This section does not apply . . . in respect of . . . an offence with which the person has been charged -

So, there was an abrogation pre-charge, no abrogation post-charge in order to respect the Hammond principle. It was argued that that was invalid. Chief Justice Gibbs, upon whom our friends rely in Hammond, rejected the challenge at 299 of his Honour’s reasons, looking about five lines down:

it was no necessary impairment of federal judicial power that a person who may subsequently come to be tried has been compulsorily interrogated before the trial. Hammond v. The Commonwealth is distinguishable.

Why? Because Hammond had been charged. Neither of the plaintiffs in the present case had been charged. So, the Chief Justice did not see a problem with examining someone pre-charge about the subject matter of the offence and the plurality judgment is perhaps even clearer; Justices Mason, Wilson and Dawson. If your Honours turn to 306 in the report, it was argued, right at the top of the page:

that s. 6A is beyond the competence of the Parliament because it constitutes an impermissible interference with the exercise of the judicial power –

If you look a few lines down, that argument was:

based on the comment of Deane J. in Hammond v. The Commonwealth –

who expressed the principle in terms of prejudice to the exercise of judicial power. So, we are looking at notions of prejudice. In the middle of that page, their Honours again distinguish Hammond, again on the basis that Hammond was a post-charge case and this witness had not been charged. And then over the page on 307, importantly, we submit, their Honours hold - I am sorry, your Honours, if you could just go back to 306 at the end of the middle paragraph, you will see the argument that was being made:

the next step in the plaintiffs’ argument is to say that s. 6A effects an impermissible interference with the administration of justice because a witness under examination at the Commission who, unlike the witness in Hammond, has not been charged can be compelled by the Commissioner to answer questions relating to an offence in respect of which a decision has already been made to charge him.

That is the kind of scenario your Honour Justice Edelman was putting to me. That seems to be what was being argued. Perhaps it is not clear whether it quite goes that far, but over the page, at 307, you see their Honours expressly saying:

the possibility, or even the strong probability, that a witness called to testify before a Royal Commission will be charged with an offence provides an unlikely basis for a finding of contempt against the Commission in the event that the witness is questioned about matters which are relevant to the offence.

At the time that the NCA Act is enacted, which is still in force as the Crime Commission Act, two recent judgments of this Court said you cannot exercise coercive investigative powers post-charge; you can in exercising them pre-charge to investigate the subject matter of the offence. That was the law as it was understood. In our submission, that is important when your Honours come to construe the notion of prejudice to a fair trial. The law as it stood at the relevant time did not recognise prejudice involved in a coercive investigation pre-charge.

We submit that the law is relevantly the same now. That is why, for example, one can still see royal commissions conducting hearings in public, where witnesses are asked about whether or not they have engaged in conduct that is criminal. As your Honours know, that is happening right now in this country. It is not prejudicial to a fair trial, and the reason is because the witnesses in question have not been charged, so the companion principle is not engaged.

GAGELER J: Do you equate contempt of court to prejudice to a trial? Are they the same thing?

MR DONAGHUE: Your Honour, I think that the answer to that is no. Up until X7, the governing principle in this area, in my submission, was contempt of court, and coercive powers could properly be exercised as long as they did not create a real risk of prejudice. That is the explanation for the quarantining orders that you see the ACC having made to try to stop the dissemination of material to prosecutors and investigators in post-charge cases to avoid contempt.

We get to X7 and this Court holds, in fact, as a matter of statutory construction that you cannot examine pre-trial at all. The reason I answer no to your Honour is that I think there is now the possibility of breach of the companion principle in circumstances that would fall short of a contempt of court so that it might be possible to have prejudice that would engage 25A(9), even if you would not have contempt.

Our central point is that, while that is possible as a matter of theory or logic, what you cannot do is identify the contempt by saying, “This is a breach of the companion principle,” whatever label you put on it. You cannot identify the prejudice by saying, “I am being required to assist some possible future prosecution that may occur” because once that is the argument, that is an argument that applies to the companion principle pre-charge, and your Honours have held that it does not so extend. The prejudice would have to be identified in a different way. That is my short answer.

Returning to the explanatory material, tab 3 has a document identified as a green paper. If your Honours look on the first page of tab 3, you will see a stamp noting that the document was tabled in the Senate. That is relevant because one of the permissible sources of extrinsic material that the Acts Interpretation Act entitles your Honours to have regard to is a document laid before or furnished to the Houses of Parliament in the context of the Bill. This is such a document. It is also referred to in the second reading speech.

We have given your Honours the whole document. I will not go right through it but it is important principally for this reason: at page 3, you can see the direct lineage of a series of royal commissions, culminating in Costigan and Stewart, in the discussion of the Crime Commission and what is, at 2.2, the compelling picture they paint of the need to address organised crime. They then quote at length over the next page or two from a number of royal commission reports.

At 5.4, which is on page 10, you will see that there is a reference made to those amendments that I have just noted in Sorby’s Case and to the problem of continuing with ad hoc royal commissions, as identified at the end of 5.4, not as being that they are too good at providing evidence but that they are not good enough, that they have been less successful in providing evidence for use in subsequent prosecutions.

So, insofar as there was an evolution being discussed, it was to become better at providing admissible material. There was though a debate recognised in the green paper starting at page 15 under the heading “Intelligence Gathering or Evidence for Prosecutions?”. There was a debate about how far the Commission’s role should go in assembling admissible evidence and two models were addressed and they are set out in Appendix II to the report. But basically one of them is an intelligence role and one of them is a law enforcement helping to prosecute and convict role, and the option they chose was the latter.

So our friends are inviting your Honours and invited the Court of Appeal to characterise this body as a body of the kind that was on the table and not adopted by the Parliament, and in seeing the reasons why that is so, perhaps the clearest discussion is at 612 at on page 17 through to talking, for example, about the need, in 613, to secure conviction and punishment. Then at 6.16, how is that going to happen? Well, the Crime Commission will “work in close co-operation with the . . . DPP” and other agencies and it will select particular cases. Then in the middle of 6.17:

it would probably concentrate on those parts of the evidence for a particular case that could otherwise be expected to be difficult of proof with a view to providing the necessary evidence in admissible form.

. . .

The Crimes Commission, working in close collaboration with the DPP, and police task forces could thus be expected to provide the sharp edge of the much needed attack on cases of organised crime –

Now, from there, if your Honours go to the next tab, the second reading speech for the NCA Act as enacted, you see on the second page in the left-hand column a recitation of the history of how the – and I will not take your Honours through that, but the green paper is mentioned about a third of the way down. In the middle of the right-hand column you will see:

The Government believes that the proposed Authority will meet the major objectives and concerns that have emerged –

And the second of those is:

the need to maintain intact the resources and expertise of the Costigan . . . and to ensure the continuation of its work -

Then over the page at 3093 in the right-hand column near the bottom about 10 lines up, the Minister said this:

the basic role of the proposed Crime Authority—although there are others as well—will be to operate as another arm of the criminal investigation process, gathering and assembling evidence for transmission to other law enforcement agencies and for use ultimately in conducting prosecutions -

If that is an accurate statement of the basic role of the Authority as established – and we submit that it is – it is, in our submission, not possible to then say, but hold on, it was a protective purpose of the enactment of 25A(9), which was there in the original Act, that whenever a person is suspected of crime, prosecutors and law enforcement are not told about the evidence that they have given, because that would defeat the very purpose of the body that Parliament was creating.

There is, on the other hand, no inconsistency about that if one draws the line as the Court drew it in X7 and says, well, once you have got to the point of charging, matters have been put into the hands of the judicial branch and the role of the Authority is over. So there is no contradiction at that level. But the contradiction arises if one reads “prejudice to a fair trial” as extending to prevent a coercive investigation in the pre-charge environment.

EDELMAN J: Well, it would not be a complete contradiction, though, would it?

MR DONAGHUE: Not complete.

EDELMAN J: Because one could still disseminate information from other witnesses.

MR DONAGHUE: Only from witnesses who are completely free of any basis to suspect wrongdoing for this reason, that a witness might give evidence that they are a drug user and that they got their drugs from a particular drug distributor. From the perspective of the Commission, it does not care necessarily about the drug user but it cares very much about the drug trafficker. But the drug user is, nevertheless, a person who may be charged. So to give the information about their drug use to prosecutors and investigators would, on our friends’ case, be impermissible because it would jeopardise the prospect of any future prosecution.

So you would have to quarantine that evidence, even though the reason you want to use it has nothing to do with prosecuting the low-level offender. There is no carve-out in the way that our friends cast this provision. That is part of the point that we were seeking to draw.

Your Honours might have noticed that there is an unusual attachment to our written outline, which was a factual example of a scenario where these powers are being exercised. The point we were trying to draw out from that – well, a few points – one, to illustrate why the authority might sensibly exercise coercive powers and reasonably exercise coercive powers against a person who has refused to talk to police and how that might play out in terms of the offending of that individual, but also, and perhaps more importantly, to illustrate that even where the interests of the Commission is in seeking to prosecute more senior people the construction advanced of 25A(9) will prevent that from occurring because in the example, the drug courier, who is undoubtedly a person who may be charged and undoubtedly a person who may potentially face a serious charge in the example given for importing the relevant heroin, even though they have given evidence at a coercive investigation that would allow urgent steps to be taken against more senior figures, the people who could take the urgent action – search warrants, tap the phones, arrest the senior figures – can never know about that information because to tell them would contravene the ACC Act because it would create a risk of prejudice to the fair trial of the courier.

So we are seeking to bring out the error in our friends’ submission that 25A(9) is about preventing derivative use of the witness’ evidence. The big difference between a use immunity and a derivative-use immunity is that both of those immunities are about using the evidence against the witness. By contrast, a non-publication direction stops the use of the evidence against anyone because if you do not know about the evidence you cannot use it. So it is not right to align, as our friends have sought to do, 25A(9) in that way.

Now, your Honours, the next tab is a Senate report – I will pass over that – particularly paragraphs 214 to 221 all again emphasise the role of the Commission in assembling admissible evidence. The NCA Act, as enacted, is behind the next tab and we have really given it to your Honours that there were structural differences, there was no board. Instead of a reference from the board, there was reference from a committee of ministers.

Perhaps that does not matter for particular purposes, but your Honours will see at section 12 the same obligation you see in the Act in its current form “to assemble any evidence and furnish it to the Attorney-General or to relevant law enforcement agency”; in section 17 “to co-operate with other law enforcement agencies” – the same section.

The section that is now 25A was enacted as 25 – it was renumbered. Your Honours will be very familiar with the structure of that section and importantly at 25A(9) you see exactly the same provision – this is now 25A(9). So it could not be suggested that the current provision operates in any way differently from the provision as enacted and so one needs to reconcile it with the purposes that I have identified.

One thing that was a significant difference, though, in the Act as enacted your Honours will see in section 30. At the start, in 1984, this Act permitted a witness to refuse to answer if the witness had a reasonable excuse – that is 30(2). It expressly provided in 30(4) that it was a reasonable excuse if:

the answer . . . or the production of the document . . . might tend to incriminate –

a person, subject to (5), and then in subsection (5) provided a capacity for the newly created DPP – the DPP, I think, also arising out of Costigan – to grant what was called an indemnity against both direct and indirect use of evidence. So the original model did not require an answer at all – sorry, required an answer unless there was a reasonable excuse but allowed a witness to refuse to incriminate themselves unless they had been given both a direct and an indirect immunity.

Before we move from that, if your Honours would turn to 30(10), you will see that there was a limit on that, again reflective of the line recognised in Hammond and Sorby between pre-charge and post-charge, so that those provisions allowing indemnities did not apply once a person was charged.

So the line that we are asking your Honours to identify, based on the risk of prejudice, is a line one sees in this statutory scheme, particularly in 30(10). That state of affairs continued into 2001. In 2001 – and this is the next tab, the National Crime Authority Legislation Amendment Act – the reasonable excuse provision was removed and the obligation on the Director to give indemnities or the power to give indemnities was removed and it was replaced with the same scheme your Honours see now, which is a direct use immunity and nothing about derivative use.

Why was that done? The explanation given in the explanatory memorandum, which is behind the next tab, about halfway down page 10, the explanation for the change is:

contrary to the current position, any evidence that is derived from that answer, document or thing may be used against the person. The Authority is unique in nature and has a critical role in the fight against serious and organised crime. This means that the public interest in the Authority having full and effective investigatory powers, and to enable, in any subsequent court proceedings, the use against the person of incriminating material derived from . . . the Authority, outweigh the merits of affording . . . self-incriminatory –

protection. So the Parliament was told about that balance and it was said, we are redrawing the balance in favour of allowing derivative use in at least some cases.

BELL J: This was at the time, was it not, of the substantial restructuring of the Commission? Now, it may not be relevant.

MR DONAGHUE: Not quite, your Honour. This is just before, so there are – I think six months later or thereabouts, six or 12 months, yes.

BELL J: Six months later one sees the Commission - and I think it may have followed September 11, 2001 - the Commission’s entire focus was restructured with a view to it collecting and analysing and disseminating intelligence and itself maintaining a national database. Before that, the NCA had collected and analysed intelligence but with a view to its dissemination to various State authorities and now one saw the Commission itself having a national database avoiding some of the known problems, I think, of co-operation between agencies.

MR DONAGHUE: Your Honour, can I answer that in a couple of ways? I do not think, in our submission, it is correct to link this change about the removal of the derivative to that sequence because there was a parliamentary report – the Parliamentary Joint Committee that supervises the National Crime Authority, it made a series of recommendations some period earlier in time and those recommendations were implemented in these reforms. One then does see the range of changes that your Honour has just put to me following – but those changes - and they are the next Act, I think, that we have given your Honours.

BELL J: Those changes also, I think, did away with – the NCA had formed joint task forces, I think, with State police and with the AFP.

MR DONAGHUE: Sometimes, yes, and the Federal Police - - -

BELL J: In a sense that operational aspect seemed to be somewhat reduced by the refocusing of the functions of the Commission.

MR DONAGHUE: Your Honour, in some ways I think that the case that our friends make against us attributes this intelligence function to the ACC by focusing on the point at which the NCA changed into the ACC. Our answer to that is to say what happened at the stage of the ACC establishment Act in 2002 was that a number of additional functions were conferred and other bodies were rolled in to the NCA. But there was nothing to amend or remove. The provisions about special investigations using coercive powers in organised and serious crime were all still there. It was just that additional functions were added on.

So, in our submission, you still had a body that – and you still see it in the NCA Act now with the definitions of “serious and organised crime” - had, tackling that kind of crime as a major focus and perhaps rather than make this submission in the abstract your Honours will see behind tab 10 the second reading speech for the ACC Establishment Bill and if your Honours look in the middle paragraph on the first page, there is discussion of the NCA:

as a national law enforcement agency whose purpose was to combat serious and organised crime . . .

The continuing support for the activities of the authority from Commonwealth, state and territory governments reflects the important role played by the authority.

The problems caused by serious and organised crime operating across jurisdictional boundaries continue to exist at all levels of society –

So you do not see that being removed or taken away. It is just that later on it is said the ACC will build on the success of the NCA and additional functions, including the Office of Strategic Crime Assessments and the Australian Bureau of Criminal Investigation will roll in.

One then sees if one looks through, really just following the headings in the second reading speech, there are headings about “Intelligence” and “Governance” et cetera, “Staffing”. Under “Staffing” you will note the second paragraph:

The ACC will have a standing in-house investigative capacity. The mix and composition of in-house and task force intelligence and investigative capabilities will be determined by the board –

So there was still to be both. There were in-house investigations, there were joint investigations and, indeed, I think one sees the board still has the power to establish task forces so that is still part of the mix but importantly at the top of the next page, under the heading “Powers”, it is recorded that:

The ACC will have in-house and task force access to all coercive and investigatory powers currently available –

So, it was not the model that you have to have an in-house ACC investigation before you can use investigative powers. You can use them in the context of facilitating the investigative activities of other law enforcement agencies provided always that it falls within the terms of the special investigation.

Now, because I think, your Honours, I have taken your Honours through the previous version of the Act, the ACC Act as it now stands, I do not want to repeat analysis of provisions you have already seen because they are essentially the same. So, you still have section 12, section 17, 25 is now 25A, section 30 is still in its form as amended to remove the derivative use immunity in 2001. So, all of those provisions remain in force.

If I could just ask your Honours though to note sections 7A and 7C. I took your Honours earlier to the Court of Appeal saying, well, we distinguish SD on the basis that the ACC’s functions in securing conviction is at best incidental and their Honours cited section 7C and I said it did not support that.

When one goes to 7A, you see a list of functions, in my submission, with no basis to regard that list as hierarchical in any way and they include both undertaking what are called intelligence operations on the one hand which can be made special operations, conferring investigative powers, but also in paragraph (c):

to investigate, when authorised by the Board, matters relating to federally relevant criminal activity -

You see the board in section 7B comprising the head of every major law enforcement body in the country. They are the people who decide what the ACC will do as well as some others; Customs, ASIC, ASIO, and then “Functions of the Board” include in 7C(1)(c):

to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters –

So, there is both authorising and investigation there and then separately in (d):

to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation -

I emphasise the “is” because what is being talked about, in my submission, is the authorised investigation. So, the board decides will an investigation happen and then it decides whether that investigation that it has authorised is a special investigation which is what makes the coercive powers available. One also sees, to make good my reference to task forces in 7C(1)(f):

to establish task forces -

Then in 7C(3) you see the matters that the board has to consider. That takes me to the question of the validity of the determination and what Mr Walker called proposition 7. Can your Honours go, in volume 15 of the book, to page 4950, which is the grant of special leave. In order 2 your Honours will see:

The grant of special leave to appeal be limited to the following ground -

and this is the ground in the notice of appeal. Looking at that ground, in our submission, it is plain that it asserts that the Court of Appeal, the court below, erred in finding that the unlawful compulsion – that is, compulsion to answer for the identified purposes – did not warrant a permanent stay. The issue is about what consequence should have followed from the finding of unlawfulness made by the Court of Appeal.

What is now sought to be done by raising a challenge to the determination is to say not that there was an error in the consequence of the unlawful finding but that the court should have found something completely different to have been unlawful. It is, in my submission, an argument of a totally different kind to the kind that is recorded in that ground.

Mr Walker said, “It is part of our appeal,” but there were one or two paragraphs in Hodges’ written submissions flagging this point which caused us to say it is outside your grant of leave. The substantive argument in attacking the determination is set out over some three pages in a document that purports to be a reply to the notice of contention. It has nothing to do with the points in the notice of contention.

The only arguments that are being advanced are attacking something found by the Court of Appeal to be lawful in circumstances that we submit are plainly not within the ground of appeal. Because it is not within the ground of appeal and no proper submissions were advanced in support of it in the submissions, your Honours have nothing responsive, looking at the validity of this question. This is a point that our friends ran before the trial judge and lost, ran in the Court of Appeal and lost and chose not to appeal, and they should be bound by their forensic choice, in our submission.

Can I take your Honours from there to their Honours’ decision in IBAC [2016] HCA 8; (2016) 256 CLR 459? If your Honours go to paragraph 1 in the joint judgment of six members of the Court, your Honours there set out the principal issue in the appeal, which was whether the power of the IBAC Act to hold a coercive examination:

is exercisable in relation to persons who have not been, but might subsequently be, charged and put on trial for an offence relating to the subject matter of the examination.

The issue is can we examine someone about the very subject matter with which they may be charged? Factually, the background appears from paragraph 4 and following. The question concerned:

whether officers of Victoria Police assaulted a female in a cell at the Ballarat police station –

could be compelled to give evidence and, critically, in our submission – your Honours see this three lines down in paragraph 5 – to give evidence in a public hearing. That was the issue in the case.

The only answer our friends have given to our reliance on this case is to say IBAC concerned a different issue. It was about whether or not you can be compelled to give the answer. It was not about dissemination. That could have been dealt with at some later time. That answer cannot be right. This was a public hearing. If the examination could occur in a public hearing then the evidence given is available to the world. There is no sensible way in which it can then be said to have been quarantined so that it could not be used by investigators, for example.

The court was considering whether - in public, like a royal commission – there could be investigation of suspected crime using coercive powers. They were doing so in circumstances – you see this at paragraph 7 – where the officers in question not only were suspected of having committed the offences in question, they had been suspended from duty on the basis that they were reasonably believed to have committed an offence punishable by imprisonment.

So it could not, in our submission, be a plainer case of an exercise of coercive powers against people who were in the gun, to put it colloquially, for possible serious criminal behaviour. The argument that the appellants ran in suggesting that this – I am sorry, before I do that I should also note, your Honours, in paragraph 16 in reciting the statutory history there was a provision quite similar to 25A in the IBAC Act. It was section 42 of the IBAC Act which provided for IBAC to issue confidentiality notices:

If . . . the IBAC considers on reasonable grounds that the disclosure of one or more restricted matters would be likely to prejudice –

. . .

(c) the fair trial of a person who has been, or may be, charged –

So one still has the “has been, or may be, charged” language. The difference is it is “likely to” rather than “might” and there is not an equivalent of the sentence that imposes the duty. There was no suggestion that the public examination of these people in relation to the offences that had caused their suspension engaged with that provision.

You will also notice in the statutory scheme at paragraph 25 that there was an abrogation of privilege against self-incrimination in terms in the Act by section 144. So these were people suspected of crime who could be compelled to give self-incriminating evidence in public. The argument that they ran, recorded at paragraph 30, was that:

the IBAC Act could not be construed as permitting the compulsory examination of a person reasonably suspected of a crime because that “would effect a fundamental alteration to the process of criminal justice” –

citing X7:

by requiring that person to assist in his or her own prosecution.

So there was squarely found in the proposition that there should be an extension of the Lee idea so as to provide protection to a person suspected of but not yet charged with an offence. That attempted extension is noted at paragraph 37 in the joint reasons, in particular, so four lines down:

It was argued that “suspects” or people “of interest” are in the same position –

that is, as people who have been charged –

so far as compulsory examination is concerned, as persons already subject to the process of criminal justice.

And “Anticipating the objection” that would be contrary to the statutory purpose, they said you could still find some content for the provision in people who were not involved in crime at all, the kind of point that your Honour Justice Edelman raised with me before.

Then, at 41, dealing with the authorities, the Court distinguishes X7. Three lines down, X7 turned on the fact that the person “had been charged” and there is a discussion of the judgments. Then, at paragraph 43:

The companion principle is, as its name suggests, an adjunct to the rights of an accused person within the system of criminal justice. Its application depends upon the judicial process having been engaged because it is an aspect of that process.

Then, quoting Lee (No 2), emphasising again:

The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof –

quoting Boral. So what your Honours did in that judgment is went through the line of authority on which our friends have relied and identified the companion principle by reference to the engagement of the process of a criminal trial, leading to the conclusion at paragraph 48 that:

In the present case, the companion principle is not engaged because the appellants have not been charged; and there is no prosecution pending. The appellants urge the Court to extend the principle. For a number of reasons, that suggestion should not be accepted. First, to reformulate the principle as the appellants urge would be to extend its operation beyond the rationale identified in the authorities, namely, the protection of the forensic balance between prosecution and accused –

Your Honours then go on, at paragraph 51, to also note that to apply the companion principle in relation to the pre-charge period would fetter the pursuit of the statutory purposes of the IBAC Act in the very way that we argue in a way your Honours understand would happen here.

So, in our submission, ultimately the proposition that the kinds of disadvantage that are said to have occurred in this case that are said to have warranted a non-publication direction required such a direction involves the idea that there was a risk of prejudice to a person’s trial because they would be required to assist the prosecution in various ways, either in the assembly of the brief or the forensic constraints on choice.

But that, we submit, is to say there is a risk of prejudice because we are then required to assist the prosecution and you cannot require us to assist the prosecution because the companion principle prohibits that. But the companion principle does not prohibit that, as long as the inquiry occurs pre-charge. The argument is, we submit, indistinguishable from the argument that was advanced and rejected by the whole Court.

Your Honour Justice Gageler’s separate reasons focused on the purpose aspect and the inconsistency between preventing the examination, on the one hand, and achievement of the statutory purpose. And we, likewise, emphasise that here and it is found also in 51 and 52 of the joint reasons.

GAGELER J: Mr Solicitor, in paragraph 69 I said something about Lee v The Queen. Was that right or wrong? Did I misread Lee?

MR DONOGHUE: Lee is factually complicated because there were two accused and there were multiple offences. So in Lee, one of the appellants had been charged with a firearms offence associated with the execution of the search warrant on the premises and was then subsequently examined. So to that extent, your Honour was wrong. In respect of the other accused, your Honour was right.

But it may be, and this has been the way that the reconciliation of IBAC with Lee has been attempted by intermediate appellate courts, is to say there was such a close connection between the matters charged and not charged that one should – that that is why the companion principle applied, because there had been charges laid in a closely related area at the time that examination occurred.

So that the judgment I am mentioning there is President McLure’s judgment in a case called Zanon v Western Australia which we have given your Honours[2016] WASCA 91; , (2016) 50 WAR 1. The explanation of Lee is at 145. In the paragraph before that at 144 - and actually could I ask your Honours to go to Zanon. So briefly, it is paragraph – sorry, 50 WAR and just turn to paragraph 144 which is on page 27, and this is really meeting the attempt of our friends to distinguish IBAC. President McLure said this:

There is no suggestion in the judgment in R v IBAC that if and when the appellants were later charged and prosecuted, the companion principle might then apply. If that was the intention, it is reasonable to expect that the High Court would have made that point, knowing the examination was to be in public. With a compulsory examination conducted in public, confidentiality in the source documents would be lost. It would be very odd indeed to apply the companion principle in those circumstances. Prime facie, the effect of R v IBAC is that the companion principle has no application to information obtained under compulsion prior to the commencement of the prosecution of an offence.

And if that is not right, if our friends are right that there is irremediable prejudice if you are compulsorily examined pre-charge because you are locked in or because investigators can use that information, then that amounts to saying that one should understand the Court in IBAC has having held – you can conduct a public investigation, that is okay, but there can never be a subsequent prosecution of the police who assaulted the woman in custody because that would be permanently stayed because of the forensic disadvantage. Your Honours cannot possibly - if that had been the intention, in my submission, President McLure is right to say one would expect that to have been drawn out in the judgment.

The other way that it may be that IBAC should be reconciled with Lee is that the dissemination in question undoubtedly occurred post-charge. And it may be relevant to know that, once charges have been laid and there is the forensic balance to be struck between the prosecution and the defence, for the prosecution to say, “I would like a bit more help at this stage with identifying the defences,” which, as your Honours will recall, is what happened in Lee, is impermissible. So that is another way that one might explain how the two cases sit together.

Where that takes us, ultimately, in our submission, is that the findings of the Court of Appeal that there was a breach of 25 or that there was unlawful dissemination in this case turns on what the Court said at paragraphs 58 and 59 of its reasons on page 4843. And, in our submission, once the principles are understood in the way that I have endeavoured to outline them, none of those matters correctly support the conclusion. Your Honours will see there are three points that are identified. One was that:

a substantial case had already been assembled.

One was that:

preparation had already reached the point where AFP investigators considered it appropriate to invite . . . in a cautioned record of interview.

And one was that:

the subject matter . . . concerned the very –

subject matter of the charge; just like IBAC, that third one. None of those things, in the context of a pre-charge investigation, had the consequence that there was a risk of prejudice that engaged the obligation.

EDELMAN J: What sort of things would, in a pure pre-charge sense, have the consequence of prejudicing a fair trial?

MR DONAGHUE: Your Honour will not be surprised to learn we have given that some thought. I think it is fair to say that, in the context of the fair trial limb, pre-charge that section will not do a lot of work. It is not immediately obvious how. But one example that one does see in the authorities – Chief Justice French and Justice Crennan in X7 are an example of this – is that, where the coercive investigation unearths evidence that could only have been obtained as a result of the compelled testimony, that might be a category of derivative evidence that should be dealt with differently, essentially for this reason: that that is evidence that a person would not have needed to confront at their trial but for the self-incrimination.

I am not eager to embrace that. I acknowledge that that is mentioned in the authorities as an example, but it is not clear, in my submission, why, in the context of legislation that has overridden the privilege against self-incrimination, that that is not a permissible thing to do. It may be that the circumstances in which a direction would be required pre-charge are very limited. That, in my submission, is not surprising. That is consistent with the public examinations having been able to occur in Sorby and in the IBAC Case, where it does not appear to have been considered. That did prejudice the trial. If it does not prejudice the trial then there is no need for any sort of ameliorating steps.

BELL J: The analysis in Sorby really was not focused on the trial, was it? The objection was to being required to answer questions before the royal commission.

MR DONOGHUE: Because it was said that that would interfere with the administration of justice in a trial that would follow.

BELL J: There was not a trial in prospect.

MR DONOGHUE: Well, the proposition that was advanced - - -

BELL J: I understand that was the argument but - - -

MR DONOGHUE: The argument was they had already been decided to be charged. That is what they were putting.

BELL J: It just seems to me it may be somewhat removed from persons suspected of the commission of a particular offence who have availed themselves of the right to decline to answer questions in relation to that, then against the findings which at some stage you have to confront. I understand you have just been dealing with the question of dissemination but the findings of the Court of Appeal, the subject of your notice of contention, relate to coerced answers in an unlawful examination.

MR DONOGHUE: I know I need to deal with that and I am running out of time and that is where I nearly am. But I have been trying to deal with the examination framework first because that is what her Honour, the only thing her Honour found, we did unlawfully. And so if her Honour was wrong about that, then that, in my submission, is - - -

BELL J: We are dealing with the Court of Appeal.

MR DONOGHUE: I know we are dealing with the Court of Appeal and I need to – I appreciate that, your Honour. So to turn then to that, could your Honours go to the Court of Appeal at 179 – sorry, perhaps instead actually we will start at 164.

So the proposition that was put on this 24A ground was that because 24A links the examination power to there being a special investigation and because special investigation is defined as:

an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation.

It was said that what was required was, to use the language in the second bullet point in 164, that the ACC have “its own project under way”. The further suggestion was that there were properly to be identified in this Act what the Court at 167 characterised as two distinct criteria that their Honours drew from the definition of special investigation and that one of those criteria – and this 171 – involved the identification of a “separate question of fact”.

So, as their Honours construed the Act, one had to have a determination of the board, but one also needed to answer a separate question of fact before coercive powers would be investigated, the question of fact being is there some kind of – and it is never clearly identified exactly how one would define this – but some kind of particular investigation, project underway within the ACC that warrants the description “an investigation”. Once one has some sort of project underway that warrants that description as a matter of fact one can then, if there is a determination, conduct the examination.

Our submission is that it is an error to construe the Act as creating what the Court of Appeal said at 267 was two distinct criterion. If your Honours go back to the ACC Act, to the definition of “special ACC investigation”, which is in section 4. This is a defined term, “ACC investigation”, that is distinguishing, in our submission, the investigative activities of the ACC where coercive powers are available from those investigative activities of the ACC where those powers are not available, the distinction turning on the existence or otherwise of a determination by the board.

Now, the determination function I touched on earlier, but if your Honours go back to 7C you see the word “investigation” being used in 7C(1)(c):

(c) to authorise, in writing, the ACC to undertake intelligence operations or to investigate matters –

. . .

(d) to determine, in writing, whether such an operation is a special operation or whether such an investigation is a special investigation –

In our submission, one does not, anywhere in this Act, see the term “investigation” being used at the level of particularity involved in – did particular person X or organisation X commit particular offence Y? The ACC Act does not use the term “investigation” in that way. Instead, it defines federally relevant criminal activity extremely broadly. One goes through a chain of definitions from federally relevant criminal activity to relevant criminal activity to serious and organised crime.

But the concept that what is being authorised by the board is an investigation into a particular kind of activity identified at that level of abstraction and then the board decides whether that investigation, however its parameters are to be defined but not at the level of individuals, is or is not a special investigation. One also sees, relevantly, in my submission, in section 7C(6), Parliament providing that the determination, that is the determination that a matter is a special investigation, “has effect immediately after it is made”.

So, if the Court of Appeal are right, then it is difficult to see how those provisions sensibly operate and certainly how they operate with any level of workable clarity because the board of the ACC might authorise the investigation of a particularly widely defined set of activities, determine that to be a special investigation, that determination takes effect immediately upon it having been made by the board but, nevertheless, an examiner who then says, well, I want to do the thing that the board has just authorised should occur, cannot do that by exercising any coercive power unless some unidentified person within the ACC has, as a matter of fact, taken a step, even if logically the first sensible step to take in investigation is to exercise coercive powers in order to acquire all sorts of information in order to advance the investigation that the board has just determined.

It, in our submission, just is not right on a proper reading of this set of provisions to say that the highly qualified and expert board has authorised something to happen but the examiner still cannot do it but that is the effect of what the Court of Appeal have held, because the argument is not an argument that this investigation was not within the boundaries of the reference of the determination. That is not what is being put. What is being put is that you have to have bodies on the ground doing something before coercive powers are available and there is no proper grounding for that in the Act.

The Court of Appeal supported it by reference to a number of different – they supported it, for example, by reference to a Full Federal Court authority called GG which they cite in 174 and 175. GG is about something completely different.

In GG, the examiner thought they were conducting a – thought they were acting pursuant to a special operation and were actually acting pursuant to a special investigation. So they had the wrong – they did not know which of the board’s authorisations were in play. It was not about a particular investigation at the level of individuals. It was about which authorising instrument was engaged.

The Court of Appeal also wrongly thought that there was fetter - and this is 178 of the Court of Appeal’s reasons - wrongly thought that the area of permissible questioning at an examination was confined by reference to this unidentified particular investigation concept. And one only needs to read paragraph – section 28(3) of the Act, which the Court of Appeal does not mention, to know that that is wrong because the Act expressly provides that:

a person . . . at an examination –

may be questioned:

in relation to any matter that relates to –

the special investigation even if it goes beyond the matters identified in the summons. So whenever someone is examined before the ACC, the permissible boundaries of the examination are the boundaries of the determination as a whole. They are not some narrower subset. So the Court of Appeal, in our submission, have introduced a requirement for a question of fact that has no statutory foundation.

Your Honours, I note the time and my time has expired. Can I say two things? On the improper purpose point we submit that if there was a

special investigation there cannot be an improper purpose for the reasons discussed yesterday, but we deal with it in writing. If your Honours – I have not said anything about standing. We could not say anything in writing about it because the point was not taken against us until the reply –

KIEFEL CJ: Would you like to provide a note with respect to that?

MR DONOGHUE: If your Honours would be assisted by that, then I would seek leave to do that.

KIEFEL CJ: Yes. Within seven days perhaps.

MR DONOGHUE: Thank you, your Honour. If the Court pleases.

KIEFEL CJ: The Court will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: If it please the Court. Your Honours, may I start with matters in reply to the argument for the Director of Public Prosecutions? Can I start immediately with a matter at the heart of things, namely, the ambit of our appeal? Could I remind your Honours of the way in which the matters are argued in our written submissions in-chief without going to them? May I however emphasise the relation between the argument which includes paragraphs 72 and 74?

Paragraph 74 conveys the point that we have tried to maintain which does have its focus in the summary paragraph 880. I do not want to say more because I would be repeating myself. Paragraph 72 - opening words shows that it is, as it were, in the nature of a fall-back point.

Justice Gageler, with respect, raises a matter that we need to explain. The Court of Appeal reversal of certain aspects of her Honour’s findings about what I am going to call the use made of the material produced from the examination in relation to the brief and related matters is not in itself a phantom notice ground of appeal and is before the Court on our appeal in the fall-back way you see it in paragraph 72 because of the circumstances of the case.

In particular, there are matters common to the first instance findings and the Court of Appeal findings, to which we have drawn attention in our written submissions, which constitute the circumstances of the case in relation to the use to which the material was put.

Separately, and in accordance with the way we presented the case in writing and in my address in-chief, the necessary consideration of consequences or the possibility of a trial judge avoiding the prejudice caused necessarily involves consideration of the role that the material produced in the examination has or may have by way of sufficiently serious threat in a trial. It is in that way that the issue of the use to which the material was put has been raised in our appeal. We are not trespassing beyond the limits of the ground of appeal, which of course does refer to the circumstances of the case.

Next, may I say that in advancing the argument which does involve calling in aid the conclusions expressed in paragraph 880 at first instance, we are, in our submission, foursquare within the principle to be seen in reasoning that has been repeated in a number of different judgments in the authorities to which everyone has made reference.

May I, by way of particular illustration, refer, without taking you to them, to the reasons of the Chief Justice in Lee (No 1) [2013] HCA 39; 251 CLR 196 at paragraphs 210, 212 and 213. Though in dissent on the question of interpretation, those are matters of principle which, with respect, are not to be doubted in the jurisprudence of this Court. Similarly in X7, again the reasons of the Chief Justice - I mean the present Chief Justice in both cases – at paragraphs 159 to 161.

That does advance the case in the way that, if I may say so with great respect, Justice Bell made inquiry yesterday, yes, that is the way in which we put the case. The relation between paragraphs 880 and 846 to which Justice Gageler has drawn to attention is one to which I now turn.

Paragraph 880 of course was presaged by her Honour’s reference - summary of the argument that you will see in her paragraph 41. I do not need to take you to it, but there is an obvious relation. The reference to the purpose in the last sentence of 880 is a reference to the purpose adopted by the rubber stamp or by the cut and paste or by the not turning the mind, et cetera, et cetera, and there is no inappropriate shorthand in her Honour referring to the power being used for that very purpose.

We know that the power came to be wielded by application of the rubber stamp without turning the mind, et cetera, et cetera. We know that it is because of that stance by the would-be examiner to the observance of the requirements of the statutory power that that which would otherwise not have been the case, namely, attributing police purposes to the ACC examiner, in this case turned out to be exactly the position. He had no purpose other than that of those who sought the facility to be used. The Court of Appeal used the pungent language I do not need to repeat concerning the way in which it was, as it were, a facility for hire.

EDELMAN J: Well, you need the extra link, do you not, that he knew of the purposes of the officers?

MR WALKER: Quite so, and her Honour calls that in aid and that justifies, in our submission, 880. It is not the case that when her Honour was at pains to say it is not logically or legally the case that the police purposes are necessarily the examiner’s purposes, it is not the case that that meant there was a severance being made by her Honour at all. To the very contrary, and without repeating myself, there must be some purpose of the examiner. We know it is not a purpose that was animated by any consideration of the statute and we know that it was made in light of an understanding of police purposes and a willingness to assist, without questioning as he should have of course, both merit and discretion.

GORDON J: So, how do we deal with paragraph 847?

MR WALKER: Paragraphs 846, 847 and 848 are all related to each other and it is the expression “it does not follow” that I had in mind in putting that her Honour was at pains to point out that it was neither logically nor legally the case that once one had ascertained police purposes, you had ascertained the examiner’s purposes. However, her Honour then goes on to draw all the strings together in relation to an examiner who, knowing of police purposes – one hopes this is an exceptional case – knowing of police purposes had no other purposes of his own other than by way of rubber stamp, providing facility for their purposes to be realised.

Now, 848 needs to be remarked at this point. We have been misunderstood insofar as argument against us seems to attribute to us the notion that locking a witness in is some self-evidently nefarious purpose never either possible at law, in common law, or to be looked at dubiously for a Potter v Minahan argument when construing a statute that might arguably authorise it. That is not what we are here to argue and we have not argued that below.

There is no doubt, as her Honour put it, that it is a necessary incident of giving evidence under compulsion that you will be locked in to some extent. I do not want to repeat what I said in-chief; being locked in does not operate, as it were, absolutely or as a matter of law. You can always chance your arm in explaining that you were wrong on the earlier occasion or that there is a qualification necessary that will change the complexion which the prosecution seeks to give your earlier admission.

But accepting the useful phrase “locked in” with those necessary qualifications, of course, as her Honour puts it at 848, not something to which we ever objected, “locking in” in that sense is an incident of giving evidence. There it is on the record. It is the second sentence of 848 which, of course, contains the nub of the matter concerning this case where there is a statute that does authorise compulsory questioning pre-charge, but does so with the safeguard of protective powers to which I will be coming.

In relation to the nature of the material, the Director put an argument both globally and, I think with respect to each of the appellants, that really when one looks at it there was not so much that was serious that was produced by examinations. Concentrating just on our client and without needing to take your Honours to it, there are plain findings to the very opposite of that in her Honour’s paragraphs 721 to 727.

To adopt a word that has been used in this area of discourse, there was nothing anodyne about what was produced. He was asked about offending. That of course, amply demonstrates that there had been the proof in our case of what was not proved in the New South Wales Court of Appeal at X7 (No 2).

There was a deal of argument concerning the notion of it being practically impossible to demonstrate the matters that her Honour in effect dealt with by saying you could not unscramble the eggs. That is the tracing document by document of the use, derivative or otherwise, being put to material which was ex hypothesi illegally obtained.

However, too much ought not to be made of this expression “practically impossible”. I do not want to dwell on it. It is pace our learned friend by no means a critical part of the reasoning upon which we rely. Her Honour’s reasons at paragraph 874 make it quite plain that it is the extreme difficulty, if not practical impossibility, that her Honour had in mind and we do not, with great respect, see that there is any point in splitting the difference between extreme difficulty and the practical impossibility which was preceded by the words “if not”.

There was an argument which we apprehend goes to the - I will call it forensic disadvantage aspect of matters against us to the effect that there had been no evidence given of the defence that implicitly we would have but for the examination presented. So that there could not be seen to be some real concrete detriment. In principle that is with respect, an impossible manner in which to apply the relevant principles for a stay as was said by Justice Hayne in a somewhat different context in Lee (No 1) [2013] HCA 39; 251 CLR 196 in his Honour’s paragraph 81. These are matters which ought to be approached on the basis that of course it is not for a court to know in advance what a defence is.

In this case, given the argument against us by the prosecution, it becomes absurd in the following way. Apparently, according to that argument, somebody in our client’s position in advancing a case for a stay, has to show that the answer to the charge disclosed in the impugned examination differs in some respect from a defence that would have, but for it being given in examination, informed the stance at trial.

So one sees that by this dislogic one reaches the position that according to the prosecution, that in order to make good your grievance against being wrongly forced to disclose your answer to a charge, you must to make good that protest, show what your answer to the charge is and then point to some discrepancy that matters.

In our submission that it an absurd position for a court to be placed and it is certainly an invidious and impossible position bearing in mind the fundamental aspects of the accusatorial process for an accused to be placed, it being recalled that at the point that one applies for a stay, the prosecution is well and truly on foot. The law surely cannot force a disclosure in those circumstances.

I next turn to the argument concerning the use of the word “reckless” in the various junctures to which we drew attention in-chief. I do not want to repeat what we have said in-chief, but we should point out apropos the argument that was elaborated from the written submissions against us by the Director, their paragraph 71, that with respect to the Court of Appeal of Victoria in the Marijancevic decision, these two things ought to be noted.

Helmhout was cited in its paragraph 84 and your Honours will remember that that is a description, for the purposes of that case, of recklessness in two limbs, the second introduced by the words “or alternatively”. The first, without quoting it verbatim, was a method of proving recklessness by appreciation of the possibility and indifference to the outcome, then follows “or alternatively a ‘don’t care’ attitude, generally”.

In paragraph 85, that expression quoted by their Honours is then glossed and, with respect, wrongly. What is then offered in paragraph 85 by their Honours is impossible to be accepted because it makes the two alternatives exactly the same and that cannot be what was intended. The second alternative copes with exactly the kind of case which was before her Honour at the instance of our client, somebody who does not even turn their mind to the provisions which gave him the power he thought he was exercising as to whether he was staying within the limits of that power.

Of course that is even more serious than somebody who makes a mistake when they do bother to think about the law. It is not as if the existence of the law was ever to be supposed to have slipped the would-be examiner’s mind.

Some reference was made by our learned friend for the Director to the man whose pseudonym is Schwartz, the police officer, senior investigating officer. It is peripheral, but the picture of her Honour being, as it were, unperturbed by his conduct is dispelled when one looks in a particular context at what her Honour observes about him generally in her paragraph 1119, which is at volume 7, 2414.

The MAC decision was called in aid for the Director. The key to whatever light it may cast on the current issues surely comes in the mixture of warning and admonition that one finds in her Honour’s paragraph 128, that is, something has to be done. Interestingly, her Honour places it squarely as the responsibility of the prosecution and something has to be done to make the trial fair. That lies in the future. There is, as it were, the unexpressed but obvious implication “or else” and the “or else” is the trial will not go on.

Could I then turn to the notice of contention. Concerning its status or the standing for those arguments to be presented not by the prosecutor but by a stranger to the prosecution, could I first say these things peculiar to this case? It is, of course, the case that the notice of contention so called, or the arguments advanced under its cloak are not, as it were, to be permitted simply because we have acquiesced in their presentation. There is no forensic history to that effect at all. As soon as they emerged, we protested.

KIEFEL CJ: But there was no appeal brought from their joinder in the court below.

MR WALKER: No, quite, but the joinder did not entitle them to do otherwise than that for which they sought leave to intervene, which was to talk about the interpretation of their Act. They were not joined to be, as it were, a reserve force not operating consistently on the issue, namely, whether there should be a stay or not. They were not joined as another prosecutor.

EDELMAN J: If issues then arise as to the operation of their Act, why cannot they then bring a notice of contention in relation to those?

MR WALKER: Because, your Honour, the case is not one about the operation of their Act; the case is about whether there is a stay. If there has been illegal conduct by a police investigator, the Commissioner of Police does not have standing to resist a stay that, say, a prosecutor does not resist on the basis of the Commissioner of Police’s interest in the interpretation of the relevant police statute. The police statute is a matter for the prosecutor, for the court, for the accused and for the public. It is not the property or the province only of the Commissioner. The same is true of the Commission here.

Now, we objected to the intervention in the Court of Appeal. It is too late after they have intervened to appeal against that intervention and it would be, with respect, bordering on the impossible to try to persuade your Honours, having got special leave on such a matter, that on that ground alone the outcome in the Court of Appeal should be set aside.

The arguments are dealt with on their merits, regardless of the identity of the parties who present them. So that is why it is not to the point that we did not undertake the quixotic exercise of seeking special leave to appeal and, in the amazing possibility of that being granted, then argue that we should win the case because they should not have been heard.

It is for those reasons that it is a matter of substance as to whether they have standing. That is the concept that we seek to advance. In criminal law, in particular, it is surely only the prosecutor who has standing to resist a stay. If the ACC has standing to resist a stay, it is presumably, generally speaking, not just on the basis of their interest in their statute and if a Minister turns up to say that he or she has an interest in the interpretation of a statute, the administration of which is within his or her department, is it truly to be understood that that Minister can resist a stay that a prosecutor thinks is proper?

Prosecutors’ duties extend to taking positions which will be unacceptable to other persons involved in the Executive. That is part of the independence that that role requires and it is for those reasons that standing is of particular and non-technical import in such a position.

KIEFEL CJ: Mr Walker, do you wish the opportunity to have a note in response to the note on standing that the Solicitor-General has asked for?

MR WALKER: Yes, your Honour. I am hopeful I will not have to avail myself of it but I would like that - - -

KIEFEL CJ: Shall we say seven days then?

MR WALKER: Yes, of course. Thank you, your Honour. I should draw to attention that some of the matters, by no means all of them, that are raised by this position, were the subject of discussion, I will not put it more highly than that, between as it happens my learned friend the Solicitor-General and Justice Hayne - I use that word “discussion” advisedly - in a transcript, the reference to which is [2008] HCATrans 258 in matter M46/2008 between Thomas v The Queen.

It did not cover the whole territory but it does explain why we did not resist the direction that the Commission had to be joined as a respondent to the application for special leave in these proceedings by reference to this Court’s Rules.

It involves not fully explored matters concerning the assimilation of an intervener to the status of a party. Sometimes, as your Honours know, statutes actually stipulate both that assimilation and its attributes, its incidence. We do not think that there is any such thing operating in this case. In any event, we seek simply to say it is a question of standing and you cannot put any argument you like just because you are a party.

Can I then turn to the substance of that matter, of the contention matter? First of all, my friend commenced his address by what he called disarmingly, some preliminary matters and they travelled over some of the same territory that the Director had covered. May I simply add to the replies which your Honours can already understand from the way in which I have dealt with them, including in-chief that when one examines the reasons of the Court of Appeal in paragraphs 207 and following, particularly 209, there is, with respect, nothing in the proposition that 880 in the first instance reasons is an inadequate foundation for the stay that we sought. That is, the findings in the Court of Appeal are materially to the same effect. They are properly called concurrent findings.

Justice Gageler asked my learned friend concerning the matter seen in her Honour’s reasons at paragraph 423, if I could take your Honours to that, and paraphrased, your Honour’s question was whether that was a sufficient state of affairs to make out the authorisation of an examination within the meaning of section 24A.

If I may say so, there is an air of fatuity, if not worse, in a witness giving an answer concerning an objective as an examiner that it was to get the witnesses to tell the truth. The oath and the law make that a duty and it adds nothing except to trivialise the seriousness of the instant inquiry for the examiner to have advanced that notion. It is not much better, though it is different, to add that he has a purpose that they would be forthcoming about their knowledge of the activities. Again, they are obliged to answer questions though if “forthcoming” simply means answer the questions, then they failed to do so at pain of imprisonment.

If, however, “forthcoming” means, in the parlance, sing, again it is a matter of what questions they are asked and the extent of their obligation. It cannot, we think, be understood as meaning anything beyond that, and 423, in our submission, cannot possibly stand, as it were, for the existence or conduct of an investigation which an examination could then serve. So the answer is no, it is not.

I then come to the historical antecedents of the provisions of the Australian Crime Commission Act as they govern this case, to which the Solicitor-General took your Honours. None of it ultimately is informative of the proper reading of the particular text upon which this case is focused, in particular 25A(9) – not only but particularly – and I will be coming to that in a moment.

Can I say this about the reliance that was placed upon the decision in Sorby [1983] HCA 10; 152 CLR 281. The fact is that that is a case which stands for or was about and enunciates the jurisprudence for the necessary bright line for the imposition of criminal liability in the nature of contempt. It is to be understood that the notion of there being a criminal offence committed at some shadowy time when in the mind of someone in an investigation a person of interest becomes a person of a lot of interest, for example, or may even morph into a suspect, none of which are terms of art, that, in my submission, is unthinkable.

That is why the law, acting coherently, says, with respect, to the imposition of criminal liability for contempt, with respect to conduct, it poses a sufficiently dangerous threat of a prejudice to a fair trial. You will not commit that crime of contempt until the processes of criminal justice are engaged. Various phrases have been used, but for all practical purposes today it will suffice to say the laying of the information charge, sometimes called the commencement of prosecution.

Of course there needs to be a bright line because we are talking about criminal liability. That is what Sorby was about. What does not follow – here, with great respect, we submit that our learned friend has elided important distinctions – is that where there is no contempt because it is pre-charge there can be no prejudice.

The law is not so foolish as to say of a person with respect to whose trial conduct will not be a contempt because there is not yet a charge, that there will be no prejudice to that trial if that conduct is committed the day before the charge laid. Just to add a not-implausible illustration of such a case, where the conduct is committed by somebody well aware that if they do it the day after a charge it will be contempt but if they do it before the charge it will not be contempt, but they do it because it will cause the prejudice they wish to encompass.

Now, once one puts to one side the totally fictitious notion that if there cannot be contempt there cannot be prejudice then one approaches an understanding of 25A(9) even after it has been construed in X7 in a simple and satisfying way that supports our position. Section 25A(9), as your Honours know, covers in its last sentence a number of possibilities to which the compulsory consideration is directed. Little, if any, attention has been given to the first part of that sentence, but it provides context.

We know from the concern expressed by Parliament about the possibility of prejudicing the reputation of a person that prejudice is being used in a general and ordinary sense and there is an obligation with respect to prejudice to reputation. Reputation of course is that which is at risk if there is not some control of publication.

Then we come to the next use of the word “prejudice” and the word “prejudice” does not get some artificially-confined meaning when repeated and that is prejudicing a fair trial. Without repeating ourselves in-chief, our response to the way the Solicitor-General puts it is encapsulated on this aspect as follows: the words “prejudice” and “fair trial” in those parts of 25A(9) call up what is understood at law in this country with respect to a fair trial. Your Honours have recited passages upon which we rely concerning the fundamental aspect and precept of the accusatorial system upon which I addressed in-chief.

It is not to the point that the companion principle, as that has come to be called, applies as the companion principle only after charge. One only has to look at the articulation in the words that have been used of the companion principle to see that is exactly what it deals with. It deals with the position of an accused.

But, again, elision should be avoided of the distinction between the companion principle and the interests – socially vital interests – that it seeks to protect. They exist pre-charge as well as post-charge. They inform the common law of a privilege against self-incrimination which exists long before charge and that is because the prejudice that might be suffered by being forced to incriminate yourself is as great as prejudice before charge as after charge.

GAGELER J: Are you going to deal with buy-back?

MR WALKER: I am. It is my next and nearly last point, your Honour, if I may defer it to then. My next point about 25A(9) is this, because of the reading in X7 - - -

EDELMAN J: Just before you move to that, I am not sure I understand how a principle can protect interests that are beyond its scope.

MR WALKER: No, I am no talking about the companion notion at all. The notion that you not be forced to incriminate yourself is related to the systemic fundamental feature of the accusatorial system, namely that it is for the prosecution unassisted to prove the case with the companion principle about being dragooned into helping them.

We do not invoke the companion principle as such, we are pre-charge. What we are saying is fair trial may be contemplated to be prejudiced with respect to a person, the hypothetical trial of whom is in question, pre-charge and 25A(9) says as much because the premise of the imposition of the duty by the last sentence of 25A(9) is the possibility of prejudicing the fair trial of a person who may be charged.

EDELMAN J: The companion principle is an instantiation of those general values in a particular context.

MR WALKER: Exactly, at a context when the court is involved. Exactly so, and once the court is involved, as it were, that is the principle that says, “Executive, keep your hands off”. Now travelling alongside all of this, and this is partly in anticipation of what I want to say specifically about IBAC is that, of course, subject only to constitutional matters that do not matter today and have not often mattered in this area, it is possible for there to be legislation that qualifies, affects what the common law provides by way of the fundamental feature of the accusatorial system and the companion principle. They are legion and the statute before the Court today is an example of it.

X7 of course, notwithstanding the case in the last sentence of 25A(9) including the fair trial of a person who has been charged, in X7, the reading by the Court was that that could not possibly be read as permitting post-charge questioning so that the case of a person, not the examinee, a person who has been charged has work to do notwithstanding the reading in X7, because publication of material from an examination can be contemplated as prejudicing the fair trial of a person other than the examinee.

That is how that part of 25A(9) operates. But that leaves one unavoidably with the other case which is the one before this Court, namely prejudicing the fair trial of a person who may be charged. Now, Justice Edelman asked my learned friend the Solicitor-General a question which, with respect, goes to the heart of this exercise in interpretation. Can one or should one read those words as referring to a possibility that has no real existence because by dint of the several elisions that we have identified as being wrong, because an approach is adopted that says pre-charge there cannot be prejudice, the companion principle does not operate pre-charge, therefore no prejudice, we say that is the error in logic.

For a start it should be enough simply to say that Parliament says there is such a thing, there is a possibility. Now, it is possible for a court to say Parliament has provided for something that does not exist but common sense says that of course there can be prejudice fair trial of a person pre-charge if they are compelled without authority. I stress without authority, unlawfully that is, to say things they would not otherwise have said.

That brings me to what I want to say about IBAC as, with respect, your Honour Justice Gageler said in your separate reasons for that outcome, paragraphs 73 and 74 – not only there, but certainly in those paragraphs – sorry, that is [2016] HCA 8; 256 CLR 459 – the fact is in that – this is a case about the meaning of the statute. Does the statute extend as far as was suggested on the side of the Executive? This is not a case about observance of the not quite equivalent of 25A(9) in that statute. It is not a case about that.

This is a case about whether the statute really does mean what it says, if you will forgive me for putting it so bluntly. The Court all said, yes, it does mean what it says and, with respect, for present purposes, the approach shown in Justice Gageler’s paragraphs 73 and 74 is one which would apply and would mean I could not be here saying what I have been saying if the examination of our client had been lawful; would not be the point to protest. If the Parliament authorises a prejudice to be visited, so be it. But ours is not a case of interpreting a power to examine.

Ours is a case of - the premise being, as the courts below have held, the examination was unlawful, is what that is – what was done under that examination and, in particular, the reversal of the position sought to be protected by 25A(9) is that something which represents a sufficient prejudice or forensic disadvantage or affront to the administration of justice as to justify the stay? That is what this case is about.

Now, in the majority, or plurality I should say, in IBAC in paragraph 41 there is one of the – this is not unique – one of the explanations and extrapolations from the case law of what we trace back, as your Honours know, to Hammond, and halfway down that paragraph a reference to X7:

In their Honours’ view, the accused’s defence would inevitably be prejudiced if he were required to answer questions about the subject matter –

but the only question for us by way of extension is, can there be prejudice to the fair trial of a person not yet charged, who may be charged, of that same kind? The answer is yes; it will not be a contempt. It will certainly be a prejudice.

GAGELER J: Inevitably? I mean, that is the word you just read – you submit that there is an inevitable prejudice?

MR WALKER: Yes, and I do not want to repeat what I have said about the formulation advanced by Sir Harry Gibbs and the considerations of it in all the passages to which we have given I think sufficient citation. I should make this qualification which does not to any degree detract from the cogency of the way Sir Harry Gibbs put it. He was after all speaking about a person being required to give an answer about offending.

The inevitable prejudice has to be understood as being the consequence of answering questions about the subject matter of the charge and if you have to you go on to add the qualification, being questions which go to your response to the charge. I mean, a charge is called a charge because it is levelled against a person.

So no one is talking either in that paragraph or in Hammond or in any of the intervening authorities – no one is talking about utterly peripheral questions that do not one way or the other provide that which an accused by the companion principle cannot be required to provide after charge, or that no person can be forced to supply to a policeman pre-charge. Then, yes, I do say inevitably; perhaps gingerly repeat the word “plurality”.

Your Honours, a couple of matters of small detail. In relation to the legislative history, I think my learned friends said in an answer that the September 2002 reorganisation to create the Commission should not be identified with part of the response to the Twin Towers. That is not how we read Mr Williams’ second reading speech with its express reference to terrorism and 11 September, but I do not suggest that that takes the matter all that much further.

As to the question concerning our 7C(4) appeal point, as I described it, the unlawful compulsion is, we submit, at its widest a combination of 7C(4), 24A and 25A(9). Those two can be - in the perhaps to be regretted way in which I used the word “redundant” in-chief – they can fall away and 25A(9) will suffice for all purposes to justify the stay.

That brings me finally to the question of 24A. Your Honours will have noted that the argument by the Solicitor-General does not engage with the factual finding by the Court of Appeal, that there was no investigation being conducted. Rather, the argument goes to whatever Determination is relevant for the several accused, although you will have noted without going to any of their texts and says that their existence, particularly if they are valid, their existence makes out the definition, or the criteria as my friend put it, the matters that need to be true for something to be a special ACC investigation, within the meaning of subsection (4)(1) of the Act.

Again, your Honours will have noted that my friend was careful not to say that the existence of such instruments shows that the ACC is conducting an investigation. Rather, we were criticised and the Court of Appeal was criticised for regarding the words “that the ACC is conducting” as requiring a factual adjudication. The criticism is, with respect, ill-founded. Those are words that do require a factual adjudication. Is the ACC conducting an investigation? It will not do to say dismissively that this is an inappropriate search for I think my friend’s expression was “bodies on the ground” or “feet on the ground”.

There is nothing inappropriate about saying, “Well, who is doing what?” Normally, with these agencies it will be the easiest thing – there will be some colourful label given to an operation or task force or project. You will be able to say, “From such and such a day we’ve been doing things”. The word is “conducting”.

Now, the chief fallacy of this argument against us is that the capital “D” Determination is that which, as a matter of law and practice, of course precedes the conduct of an investigation, namely, its authorisation. As it happens, in order to be special there has to be the determination that it be special. But you were not taken to any of the instruments because none of them shows that anything has been conducted at all.

For our purposes, and our appeal point on 7C, we sought to impress upon your Honours the immense comprehensiveness so that just in case on the shelf nature of the provisions of those instruments highlighted by the fact that the argument upon which we have failed to date concerning the validity of the determination in question involves the unnamed multifarious predicate offences for money laundering being within its terms. You need one of those unnamed predicate offences of money laundering to get the foreign bribery offences in in our cases.

Now, it is very telling that no attempt is made, nor could any succeed, to the effect that those are instruments that show within the meaning of the words of the definition that there was an investigation “that the ACC is conducting”.

There is an almost throwaway line of the Court of Appeal, upon which we need not linger, which obviously, by reference to that particular verbal construction “is conducting” casts doubt upon the proposition that that could be made out if the examination in question, the putative 24A examination, was the first, query only, activity said to show that that was happening.

Their Honours did not base their conclusion on that alone, though, not surprisingly, they cast doubt upon the notion that there could be said to be something which answers the description of an investigation that the ACC is conducting at the point that a decision is made within the meaning of 24A.

We would, with respect to the Court of Appeal, contemplate that one could start with a bang, as it were, and be conducting – that is, in the present continuous – an investigation the very first bout of which is an examination. But there was no attempt whatever to show that that was happening in this case, and the Solicitor-General has not demonstrated it. The finding of fact here is that there was an investigation being conducted by the AFP and that it was for the purposes of that investigation. We, in this argument, then add the phrase “and not for any fictitious ACC investigation that the examination was convened”.

GAGELER J: Mr Walker, you can make the same argument, can you not, without needing to go so far as to say that there was no ACC operation investigation? If you go to the language of section 24A, you assume there was such an investigation, but the examination still has to be for its purpose rather than some other purpose.

MR WALKER: The short answer is yes. I do not need to elaborate that, yes, but, your Honour, I am answering an argument against us and the last thing I want to say about that is you cannot read out the ordinary English of that first part of the definition. Your Honours will know that the very next word is “and” so of course there are two components. They really are two components. If it please the Court.

KIEFEL CJ: Yes, Mr Tehan.

MR TEHAN: Your Honours, we have three matters to put in reply. Before turning to them, can I put one matter to the Court? On the issue of standing your Honour Justice Edelman asked about the ACC’s interest in its statute. It should not pass unremarked that the particular provision that the Solicitor-General has addressed argument upon, that is 25A(9) has been repealed and re-enacted in a different form on 30 June 2015 by the Law Enforcement Legislation Amendment (Powers) Act 2015 which is Act No 109 of 2015.

Now, your Honours, can we go to the three points that we wish to make. The first point is this. Given our learned friend’s discussion about the position of the various accused with reference to without prejudice discussions, the conduct of the committal, the making of other disclosures to the prosecution and so on we want to say this. There is good reason that in none of what our friend submitted there was anything to do with our client Mr Tucker’s position.

Whatever merits Ms Abraham’s submissions on those issues do or do not have, with respect to other appellants, they do not have any force with respect to Mr Tucker for these reasons. By mid-2010 it was clear that Tucker would be charged with something in relation to foreign bribery, though the precise charges had not been determined, and in that regard could we take the Court to appeal book volume 7 at page 2289 at paragraph 469. Her Honour in that paragraph stated:

By mid-2010, all of the relevant AFP and CDPP staff clearly were of the opinion that [Tucker] would be charged with something in relation to foreign bribery, although precisely what charge(s) he would face would depend on counsel’s advice. In August, [Schwartz] communicated with [Tucker’s] lawyer about a possible sentencing discount that might be available to him.

The communication that was there referred to is contained within exhibit 158 upon the hearing before her Honour. These two – I am going to hand up exhibit 158 and 157. The Court had those two documents. These documents were omitted from the appeal book, your Honours, although they are referred to in the submissions. But they are of relevance to this point that we seek to make.

One will see from them that on 3 June 2010 through his solicitors our client had made it clear that if he was sought to be interviewed by way of a cautioned interview, he would exercise his right to silence. That appears in exhibit 157. Then in relation to exhibit 158 – and this is the communication, with respect, that her Honour must have been referring to in 469 which I have just read – and I will not read the whole of it out, but one will see in the third paragraph commencing:

In relation to your client’s alleged offending, we would like to point out that we are considering a range of charges –

and thereafter the charges are referred to, including conspiracy to bribe a foreign official.

In the next paragraph, Mr Schwartz states, inter alia, unfortunately his actions need to be addressed at some future time and we repeat that we would welcome any information he is willing to provide. Now, of course, Tucker did exercise his right to silence.

This particular matter has some relevance to the – part of the argument addressed by the learned Solicitor-General because it was submitted by him that this case was nowhere near a case in which a decision to charge has already been made at the time of the examination. In our submission, at least in the case of our client, that is absolutely incorrect, having regard to what I have just said.

Now next, Tucker was examined in detail about the offending relating to both [...] and [...] on 30 November 2010 and Mr Walker pointed out in respect of his client that there was nothing anodyne in his client’s examination. Precisely the same point must be made with respect to our client and we take the Court to appeal book 7, volume 7, page 2338 at paragraphs 728 to 733.

I will not read those paragraphs to the Court but they finish with the observation that the conduct – they deal with the conduct of the examination, the detail of the examination, the confession – the confessional nature of the statements made against interest by our client and the observation – the conclusion that our client’s forensic choices at trial have been seriously constrained in the same way as Mr Walker’s client. As we know, Tucker was ultimately charged only in relation to [...].

Finally, in relation to this first point of our reply, the preparation of the prosecution case in relation to that alleged offending, [...], commenced only after – indeed, some six months after Tucker’s examination. That, of course, has a particular relevance to it, because the approach of the Court of Appeal to the task of analysing whether inferences could properly be drawn by the judge, that is, the trial judge, on the issue of forensic advantage suffered from the fundamental misapprehension that the brief against the [...] appellants had already been prepared at the time of the examinations. As our learned friend Mr Mandy pointed out yesterday, that was simply incorrect.

Your Honours, could I turn to the second point that we seek to make. If we might briefly deal with the submission by Ms Abraham that we conceded in the Court of Appeal that the word “reckless” was used in the sense set out in DPP v Marijancevic. It ought be remembered at the very outset that in DPP v Marijancevic, a case which concerned police officers improperly swearing affidavits in circumstances where they thought what they were doing was lawful, it is to be remembered that the Director’s interlocutory appeal failed.

Indeed, the Court of Appeal upheld the finding of the trial judge in that case that the behaviour of the police was reckless in spite of the fact that they had sworn that they thought that what they were doing was lawful. It is said against us that there was no contest in the Court of Appeal that the approach adopted by that court to the word “recklessness” was the sense in which her Honour used it. With respect, that is simply not so, in the case of Tucker at least.

Our submission in the Court of Appeal was that such an approach wrongly assumes the trial judge to have used the word in a technical legal sense. Could we take the Court in that regard to appeal book volume 13, pages 4423 to 4425 at paragraphs 8 to 14. These were supplementary submissions of Rick Tucker in relation to forensic disadvantage submissions made by the Australian Crime Commission in the appeal. I want to touch shortly upon a couple of matters. It will be seen that we state at about point 4 on page 4423:

The tenor of the learned trial Judge’s findings was that Sage failed to pay sufficiently close attention to, and to be properly diligent in exercising, his statutory powers and observations. Notwithstanding the clarity – and obvious correctness – of those findings, the ACC now seizes on the learned trial Judge’s use of the word “reckless” and contends that it demonstrates error, on the basis that the ACC submits that the test for recklessness stated in R v Helmhout and DPP v Marijancevic was not satisfied.

Then he referred to three flaws with that approach, stating under the first flaw, inter alia, that neither case of Helmhout or Marijancevic:

stands as authority for the proposition, now asserted by the ACC, that a Judge using the word “reckless” in describing a person’s conduct, must only do so if it satisfies the test for recklessness applicable to s 138(3)(e) of the Uniform Evidence Act.

Then we go on - and I will not read the next two requirements; they speak for themselves in the next two flaws that we contended for – in paragraphs 10 and 13.

We do say in paragraph 12, in contradistinction to the ACC’s submissions, it might be reasonably submitted that the totality of the evidence not only permitted but led inexorably to findings of the type made by the learned trial judge.

Now, your Honours, we maintain that submission here. The word “reckless” does not possess and was not used by the trial judge in a monolithic legal sense. Given that the word was used in a context that did not turn on satisfaction of a defined state of mind as, for example, in the case of section 138 of the Uniform Evidence Act, it is pertinent to note that the word has many shades of meaning. They correspond entirely with the trial judge’s findings in respect of Mr Sage’s conduct, which Mr Walker took your Honours to yesterday.

Could we just, in that respect, shortly refer to one case in this Court. It is Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262. What we say is, as Justices Gummow, Hayne and Heydon said in that case, at paragraph 1:

The term “reckless” has various uses as a criterion of legal liability.

At paragraph 36:

in its ordinary use, “reckless” may indicate conduct which is negligent or careless, as well as that which is rash or incautious as to consequences; the former has an “objective”, the latter a “subjective”, hue.

In any event, whatever the descriptor is given to the examiner’s conduct in this case, the important point is what the examiner actually did or more tellingly, failed to do, and the consequences of those failures and, in our respectful submission, it is in that sense that her Honour employed the term.

As much is obvious, we would contend, from her Honour’s statements, such as “reckless indifference” and “disregard of obligations” and “reckless to an unacceptable degree”. In this case, in our submission, the conduct of the examiner here amounted to a very serious departure from the statutory obligations that the examiner had resulting in the appellants being denied the protections to which they were entitled in order to ensure a fair trial.

Last point - finally, related to the issue that we have been debating, Ms Abraham has made some submissions about paragraph 846 of Justice Hollingworth’s judgment. Paragraph 846 of her Honour’s judgment was not challenged in the Court of Appeal. Paragraph 880 which contains similar findings to those made in 846, though more extensive findings, was not challenged in the Court of Appeal. To the contrary, it was adopted.

Paragraph 880 is quoted at the top of appeal book volume 15, page 4898 and the finding as to the purpose for which the power was exercised was emphasised. The Court of Appeal then went on at paragraph 209 of their judgment which appears at appeal book 15, 4903, to adopt those findings saying:

On the basis of her Honour’s unchallenged findings, we would characterise what occurred here in the following way.

They then go on to draw in paragraph 211 a legal conclusion that the powers were exercised for an improper purpose. The significance of the findings by her Honour in paragraphs 846 and 880 that we have taken your Honours to is this. As a result of the examiner’s failures, whatever descriptor be given to them, the examination power was deployed for the very purpose of undermining the fairness of the appellant’s trials despite the requirement that he make directions to prevent those – that very thing occurring. We rely upon the terms of section 25A(9) and Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 at paragraphs 27 and 29, that is the examination powers were exploited in a way that was intended to alter the balance of power in a future trial to the appellant’s detriment.

That being so, the trial judge was, in our submission, entirely correct to permanently stay this quite exceptional case to protect confidence in the administration of justice and we rely upon what was said in that regard in this Court in Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456 at 57. In addition, as her Honour the trial judge found at 880, this case is exceptional because the investigators had employed the ACC’s compulsory examination powers - - -

KIEFEL CJ: Mr Tehan, are these matters of reply?

MR TEHAN: Yes, your Honour, and I am nearly finished.

KIEFEL CJ: Well, if you say they are matters of reply, please conclude.

MR TEHAN: They are, your Honour. In addition, as her Honour the trial judge found at 880, this case is exceptional because the investigators had employed the ACC’s compulsory examination powers for the very reason that the appellants had exercised the right to silence. It is against this background that it is well to bear in mind what Justice Brennan, as he then was, said in Petty and Maiden v The Queen (1999) 173 CLR 95 at 107 in reference to the right to silence:

The rule is designed to prevent oppression by the police or other authorities of the State-

In this case, the very purpose of the examination was to lock the appellants into a version of events and thereby to prevent the appellants from providing any alternative version at their trials because they had exercised their right to silence and in our respectful submission a stay – the judge was

correct in granting a stay on the ground that to do so – on the ground that not to do so would bring the administration of justice into disrepute. A permanent stay was justified on the basis of upholding the integrity of the legal system and its institutions. For these reasons, in our submission, the appeal should be allowed. If the Court pleases.

MR WALKER: I apologise. I omitted one of my notes for reply to Ms Abraham. It concerns the existence of so-called without prejudice discussions.

KIEFEL CJ: Yes.

MR WALKER: I am so sorry, I omitted to raise it earlier. I suppose that that was in order to attenuate forensic disadvantage or prejudice. However, at first instance it was dealt with by her Honour in volume 7, 2342, at paragraph 754. I do not need to read it; it is a complete refutation of the point and on factual bases. That was the subject of appeal, but you will not find it in the Court of Appeal’s reasons, no doubt because of what occurs as recorded in volume 14, 4635, starting in line 4, 4636, down to about line 17, where it was not even faintly pressed.

KIEFEL CJ: Thank you. Mr Cahill.

MR CAHILL: On behalf of Mr Galloway, we adopt the submissions in reply of our learned friends on behalf of Hodges, Tucker and, in anticipation, Strickland. There is nothing further that we would wish to add.

KIEFEL CJ: Yes, thank you, Mr Cahill. Yes, Mr Mandy.

MR MANDY: Your Honours, just touching on that last point that Mr Walker made in relation to the voluntary disclosure issue that Ms Abraham raised as in some way attenuating a forensic disadvantage, her Honour made findings in relation to Mr Strickland, in relation to his voluntary disclosures at paragraphs 757 to 759 of her judgment, appeal book 7, 2343. At 2344 at paragraph 764 sums up her conclusion about the extent of those voluntary disclosures compared with the extent of what was revealed in the examinations. The voluntary disclosures were in brief conversations with the police and the examination of Mr Strickland took place over two days and many hours. So, the difference is starkly revealed by that.

The concession as to investigative advantage that I referred to in my outline of oral submissions and to which Ms Abraham took issue was recorded in the original submissions filed but I will give your Honours the page reference for the concession before the Court of Appeal. It is at appeal book 14 at page 4597 when President Maxwell was asking counsel for the DPP about paragraph 790 of her Honour’s judgment and counsel took no issue with the fact that there was a forensic advantage to the investigators. He did not concede that there was a product of that advantage but he conceded investigative advantage.

Her Honour at paragraphs 734 to 740 made findings about the extent of Strickland’s examination.

Moving on to the next topic, a point was made by Ms Abraham about, and the same point was made in the Court of Appeal about cross-examination as to suspects being directed towards a particular purpose which was then abandoned on the first day of submissions. I just make the point that cross-examination about the extent of an appellant being a suspect was also relevant to the issue before this Court and that is the extent to which the examiner was required to apply section 25A(9) to the position of the appellant, that is, the extent to which he was regarded by the AFP as a suspect known to the examiner was relevant to the question of how to apply section 25A(9).

There was a distinction made by Mr Donaghue, moving to the ACC’s submissions about pre-charge and post-charge and this is a fact that might dovetail into the other submissions from the DPP. Her Honour records at paragraph 481 that Mr Strickland prior to his examination was offered by the AFP a sentencing discount for his co-operation and if that is not a clear indication of a prospective charge, that someone is being offered a sentencing discount, then nothing could be.

Mr Donaghue also relies on prosecutorial propriety in not abusing that distinction between pre-charge and post-charge – that is, if a prosecutor is intending to charge someone, they would not delay that charge in order for an examination to take place. I accept that point, prosecutorial propriety would dictate that, but here we are not dealing with prosecutorial propriety but rather with the propriety of the AFP and its chief investigator, and plenty has been said about the findings that her Honour made about that individual.

Mr Donaghue also gives examples of people who are examined as drug users to give evidence about drug traffickers – that is, minnows being examined to provide evidence against sharks. That is not the case here. In this case, the other appellants will forgive me using this expression but they are all sharks as far as the AFP was concerned in relation to this allegation. The AFP and Sage perpetuated an accretion of wrongs, in our submission, conduct designed to perpetuate what the statute was designed to prevent in the end. If your Honours please.

KIEFEL CJ: Thank you, Mr Mandy. The Court reserves its decision in these matters and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise to 10.15 am.

AT 3.49 PM THE MATTER WAS ADJOURNED