HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJM168/2017
TONY STRICKLAND (A PSEUDONYM) APPELLANT
AND
COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS & ORS RESPONDENTSM174/2017
DONALD GALLOWAY (A PSEUDONYM) APPELLANT
AND
COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS & ORS RESPONDENTSM175/2017
EDMUND HODGES (A PSEUDONYM) APPELLANT
AND
COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS & ORS RESPONDENTSM176/2017
RICK TUCKER (A PSEUDONYM) APPELLANT
AND
COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS & ORS RESPONDENTSTony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions
Donald Galloway (a pseudonym) v Commonwealth Director of Public Prosecutions
Edmund Hodges (a pseudonym) v Commonwealth Director of Public Prosecutions
Rick Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions[2018] HCA 53
8 November 2018
M168/2017, M174/2017, M175/2017 & M176/2017
ORDER
1. Appeals allowed.
2. Set aside orders 2 and 3 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 25 May 2017 and, in their place, order that the appeal to that Court be dismissed.
3. Subject to orders 4 and 5, the reasons for judgment of the Court be made available from the High Court Registry only in their redacted form and by request, subject to payment of the prescribed fee.
4.The full, unredacted reasons for judgment of the Court be provided to the parties and their legal representatives.
5. Pursuant to s 77RE(1) of the Judiciary Act 1903 (Cth), it being necessary to prevent prejudice to the proper administration of justice under s 77RF(1)(a) of the Judiciary Act, there be no disclosure other than disclosure in accordance with order 4, whether by publication or otherwise, of the full, unredacted reasons for judgment of the Court until 10:00am on Wednesday, 14 November 2018 or further order.
6. There be liberty to apply within 5 days for orders to continue the suppression or non-publication of any of the redacted sections of the unredacted reasons for judgment of the Court.
On appeal from the Supreme Court of Victoria
Representation
C G Mandy for the appellant in M168/2017 (instructed by Jimmy Lardner Lawyers)
M P Cahill SC with M D Stanton for the appellant in M174/2017 (instructed by Hicks Oakley Chessell Williams)
B W Walker SC with G H Livermore and C E Currie for the appellant in M175/2017 (instructed by Holding Redlich)
P F Tehan QC with C T Carr for the appellant in M176/2017 (instructed by Slades & Parsons Solicitors)
W J Abraham QC with K T Armstrong for the first respondent in all matters (instructed by Director of Public Prosecutions (Cth))
S P Donaghue QC, Solicitor-General of the Commonwealth, with S J Maharaj QC and G A Hill for the second respondent in all matters (instructed by Australian Government Solicitor)
Submitting appearances for the third, fourth and fifth respondents in each matter
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions
Donald Galloway (a pseudonym) v Commonwealth Director of Public Prosecutions
Edmund Hodges (a pseudonym) v Commonwealth Director of Public Prosecutions
Rick Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions
Criminal practice – Abuse of process – Where Australian Crime Commission ("ACC") received information concerning allegations that company involved in criminal activity – Where allegations referred to Australian Federal Police ("AFP") – Where appellants declined to participate in cautioned record of interview with AFP – Where appellants compulsorily examined by ACC – Where examiner aware that appellants were suspects who may be charged with an offence – Where examiner permitted AFP officers to watch examinations from nearby room without disclosing their presence to appellants – Where examiner permitted dissemination of examination material to AFP and Commonwealth Director of Public Prosecutions – Where appellants subsequently charged with Commonwealth and Victorian offences – Where appellants sought permanent stay of prosecutions for abuse of process – Where primary judge permanently stayed prosecutions – Where Court of Appeal of Supreme Court of Victoria allowed appeals from orders of primary judge – Whether ACC conducted special investigation under Australian Crime Commission Act 2002 (Cth) – Whether examinations unlawful – Whether prosecution derived forensic advantage from examinations – Whether appellants suffered forensic disadvantage as result of examinations – Whether examinations unlawful infringement upon appellants' right to silence – Whether examiner's conduct reckless – Whether permanent stay necessary to prevent administration of justice falling into disrepute.
Words and phrases – "abuse of process", "administration of justice", "coercive powers", "compulsive powers", "compulsory examination", "derivative use", "direct use", "dissemination of examination product", "fair trial", "forensic advantage", "forensic choice", "forensic disadvantage", "illegally obtained evidence", "improper purpose", "integrity of the court", "locked in", "may be charged", "non-publication directions", "permanent stay", "prejudice", "prosecution brief", "prosecutorial team", "reckless", "right to silence", "special investigation", "suspect", "trial directions", "unlawfully obtained evidence".
Australian Crime Commission Act 2002 (Cth), ss 7C, 46A, Pt II Div 2.
KIEFEL CJ, BELL AND NETTLE JJ. These are appeals from a decision of the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Redlich and Beach JJA)[1] allowing appeals from orders of the primary judge permanently staying prosecutions of the appellants for offences contrary to the Criminal Code (Cth) and, in some cases, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic). The appellants were compulsorily examined by the Australian Crime Commission ("the ACC")[2] in 2010 prior to being charged with those offences. The principal issue in each appeal is whether the ACC acted so much in disregard of the requirements of Div 2 of Pt II of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") as it then stood, and therefore in unlawful violation of each appellant's common law right to silence, that the prosecutions should be stayed.
[1]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120.
[2]The ACC is also known as the Australian Criminal Intelligence Commission: Australian Crime Commission Act 2002 (Cth), s 7(1A); Australian Crime Commission Regulations 2002 (Cth), reg 3A.
Relevant statutory provisions
The ACC is established by s 7 of the ACC Act. Section 7A(c) provided at the time of the examinations that the functions of the ACC included investigating, when authorised by the Board of the ACC, matters relating to federally relevant criminal activity.
The Board was constituted by s 7B of the ACC Act and comprised the Commissioner of the Australian Federal Police, the Commissioner or head of the police force of each State and Territory, the Secretary of the Attorney-General's Department, the Chief Executive Officer of Customs, the Chairperson of the Australian Securities and Investments Commission, the Director‑General of Security, the Chief Executive Officer of the ACC ("the CEO") and the Commissioner of Taxation. The Commissioner of the Australian Federal Police was the Chair of the Board.
Section 7C(3) provided that the Board may determine in writing that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, however, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective.
Section 7C(4) provided that a determination that an investigation is a special investigation must describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity, state that the relevant crime or crimes is or are an offence or offences against a law of the Commonwealth, a State or a Territory, and set out the purpose of the investigation.
Section 46A(2A) provided that as soon as practicable after the Board authorises in writing the ACC to investigate matters relating to federally relevant criminal activity, the CEO must determine in writing the head of the investigation.
Section 46B provided for the appointment by the Governor‑General of a person who has been enrolled as a legal practitioner for at least five years as an examiner.
Division 2 of Pt II of the ACC Act provided for the conduct of examinations by the ACC. Section 24A provided that an examiner may conduct an examination "for the purposes of a special ACC operation/investigation". A special ACC investigation was defined in s 4(1) 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.
Section 28(1) provided that an examiner may summon a person to appear before an examiner at an examination to give evidence and produce documents or other things as are referred to in the summons, but s 28(1A) provided that before issuing a summons the examiner must be satisfied that it is reasonable in all the circumstances to do so and also record in writing the reasons for the issue of the summons either before or at the same time as the issue of the summons.
Section 28(5) provided so far as is relevant that an examiner may at an examination take evidence on oath or affirmation and for that purpose require a person appearing at the examination to give evidence to take an oath or affirmation.
Section 28(7) provided so far as is relevant that the powers conferred by s 28 are not exercisable except for the purposes of a special ACC investigation.
Section 30(2)(b) provided that a person appearing as a witness at an examination before an examiner shall not refuse or fail to answer a question that the examiner requires the person to answer. Section 30(6) provided that a person who fails to answer is guilty of an indictable offence punishable by up to five years' imprisonment.
Section 30(4) and (5) provided so far as is relevant that if before answering a question a person claims that the answer might tend to incriminate the person or make the person liable to a penalty the answer is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than confiscation proceedings or a proceeding in respect of the falsity of the answer.
Section 25A(3) provided that an examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or part of the examination.
Section 25A(6) provided so far as is relevant that at an examination a witness may, so far as the examiner thinks appropriate, be examined or cross-examined on any matter that the examiner considers relevant to the special ACC investigation by counsel assisting the examiner, any person authorised by the examiner to appear at the examination or any legal representative of the person at the examination.
Section 25A(7) provided that if a person other than a member of the staff of the ACC is present at an examination while another person ("the witness") is giving evidence, the examiner must inform the witness that the person is present and give the witness an opportunity to comment on the presence of the person. Section 25A(8) provided that a person does not cease to be entitled to be present at an examination or part of an examination if the examiner fails to comply with s 25A(7).
Section 25A(9) provided so far as is relevant that an examiner may direct that any evidence given before the examiner must not be published or must not be published except in such manner and to such persons as the examiner specifies, and further provided that the examiner must give such a direction if the failure to do so might prejudice the fair trial of a person who has been or may be charged with an offence.
The facts
The primary judge found that, for every special investigation authorised by the Board, the CEO nominated a head of investigation under s 46A(2A) of the ACC Act, and that the position was referred to within the ACC as the Head of Determination ("the HOD"). While the determination for an investigation remained on foot, the HOD identified projects that he or she considered could appropriately be pursued under the determination. For each such project, the HOD prepared an application to the relevant internal management committee, seeking approval for the work to be undertaken. To begin with, the relevant internal management committee was called the Governance Operations Committee ("the GOC"). Later, the GOC was replaced by the Organised Crime Management Committee ("the OCMC"). Those committees were set up to assist the CEO in his or her responsibility to manage, co‑ordinate and control ACC investigations. Each committee was chaired by an Executive Director and consisted of all HODs, State and National Managers, and other senior members of staff of the ACC and met, on average, two to four times per month, to consider project applications, reports and other operational matters.
Applications for project approval set out the significance of the proposed work, its alignment with determination objectives, the resources required, the expected outcomes, and any legal advice as to the legality of the proposed activity. The GOC/OCMC determined whether the project should be undertaken. If a project were approved by the GOC/OCMC, resources were applied, which may have included analysts, investigators, lawyers and examiners who would identify how best to achieve the project aims. In the case of special ACC investigations, that may have involved conducting compulsory examinations. If a potential witness for examination was identified, an application would be made to an examiner.
On 25 June 2008, the Board made the Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 ("the Financial Crimes Determination") under s 7C authorising the ACC to investigate "the matter mentioned in Schedule 1 relating to federally relevant criminal activity until 30 June 2009". The following appeared in Sched 1 cl 1 under the heading "Investigation":
"An investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, federally relevant criminal activity:
(a)was committed before the commencement of this Instrument; or
(b)was in the process of being committed on the commencement of this Instrument; or
(c)may in future be committed."
Clause 2 of Sched 1 identified the circumstances which were said to comprise the federally relevant criminal activity as follows:
"The general nature of the circumstances constituting federally relevant criminal activity that may have been, may be being, or may in future be, committed are those implied from information available to Australian law enforcement agencies indicating:
(a)reports made by cash dealers under the Financial Transaction Reports Act 1988 or by reporting entities under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 may be linked to persons or entities suspected of involvement in relevant criminal activity, or of their nature indicate suspicious activities pointing to likely involvement of entities involved in relevant criminal activity;
(b)the failure of persons suspected of involvement in relevant criminal activity to lodge income tax returns over a number of years;
(c)the acquisition of assets totally disproportionate to declared income or non‑declaration of income by persons suspected of involvement in relevant criminal activity;
(d)that business structures and financial arrangements of organised crime entities are becoming increasingly complex and are making use of professional facilitators, intermediaries and financial services providers in Australia and overseas;
(e)that criminal enterprise structures are increasing their global networking and employ the inter‑mingling of legitimate funds and proceeds of crime and are participating in otherwise legitimate commercial enterprises;
(f)effective targeting of the business structures of organised crime entities requires a multi‑agency intelligence driven approach at a national level with access to coercive powers."
As to the allegations said to constitute the federally relevant criminal activity, cl 3 of Sched 1 stated that:
"The general nature of the allegations that federally relevant criminal activity may have been, may be being, or may in future be, committed, is that from 1 January 1995 certain persons in concert with one another or with other persons, may be engaged in one or more of the following activities:
(a)money laundering within the meaning of the Proceeds of Crime Act 1987;
(b)dealing with money or other property contrary to sections 400.3, 400.4, 400.5, 400.6(1), 400.6(2) or 400.7(1) of the Criminal Code;
..."
That was followed by a list extending over three A4 pages of more than 70 different offences against Commonwealth and State laws ranging from money laundering through to offences of general dishonesty, customs offences, currency offences and violence related offences, as well as "such other incidental offences the head of this ACC special investigation suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving" the commission of any of some 58 of the offences specifically identified plus "other unlawful activities that are related to or connected with [those] activities and that involve relevant offences against a law of a State [defined to include the Australian Capital Territory and the Northern Territory] that have a federal aspect".
Clause 6 of the Financial Crimes Determination provided under the heading "Determination" that:
"Pursuant to paragraph 7C(1)(d) and subsection 7C(3) of the [ACC] Act, the Board:
(a)has considered whether ordinary police methods of investigation into the matter mentioned in Schedule 1 relating to federally relevant criminal activity are likely to be effective; and
(b)determines that the investigation mentioned in Schedule 1 is a special investigation."
Clause 9 of the Financial Crimes Determination identified the purpose of the investigation as follows:
"The purpose of the investigation is:
(a)to collect and analyse criminal information and intelligence relating to the federally relevant criminal activities, to disseminate that information and intelligence in accordance with the [ACC] Act and to report to the Board; and
(b)to identify and apprehend persons involved in the federally relevant criminal activities, to collect evidence about those activities and to reduce the incidence and effect of those activities; and
(c)to make appropriate recommendations to the Board about reform of:
(i)the law relating to relevant offences; and
(ii)relevant administrative practices; and
(iii)the administration of the courts in relation to trials of relevant offences."
The GOC subsequently approved a project to deal with matters arising under the Financial Crimes Determination.
In December 2008, the ACC received information from an "unregistered human source" concerning allegations that XYZ Limited[3] was involved in criminal activity. That criminal activity was not one of the offences set out in Sched 1 cl 3 of the Financial Crimes Determination. In March and April 2009, the ACC conducted an initial assessment of those allegations.
[3]A pseudonym.
Based on that assessment, the Operations Manager of the Financial Crimes Program within the ACC produced an undated investigation proposal in which it was suggested that a GOC application be made for an operation to investigate the claims relating to XYZ Limited. The Operations Manager noted, however, that:
"It is not the intention of the team to complete a complex full scale investigation at this stage, but rather to determine the validity of the claims made by the source and to identify opportunities for intelligence and evidence collection. There is also a significant foreign component of a full scale investigation which would require the cooperation of the Australian Federal Police and various overseas partner agencies."
As the primary judge determined, the Operations Manager was not recommending a joint investigation involving the Australian Federal Police ("the AFP") but rather advising against a full scale investigation at that time because it would require bringing in the AFP and overseas agencies. The Operations Manager recommended instead that the next step should be to conduct preliminary discussions with a number of cooperative witnesses identified in the initial assessment by way of either examinations or "general discussion" with witnesses who were not implicated in the allegations of corruption. Significantly, the Operations Manager advised against the examination of employees who were likely to be implicated in the allegations.
Further, as the primary judge also found, there was no evidence that the Operations Manager's recommendation was adopted. The ACC did not appoint a head of investigation or assign any of its staff to investigate the allegations involving XYZ Limited. Instead, on 22 April 2009, the ACC referred the allegations to the AFP and offered to allow the AFP to utilise the ACC's coercive powers. Thereafter, as the primary judge found, the ACC did not undertake any investigation of XYZ Limited of its own. It acted at all times "as a facility for the AFP to cross‑examine under oath whoever the AFP wished, for the AFP's own purposes"[4].
[4][2016] VSC 334R at [395].
In late May 2009, the AFP formally commenced an investigation entitled "Operation Thuja"[5] and a lead investigator was appointed. Initially, Operation Thuja was a broad-ranging investigation which concerned the culture within XYZ Limited and focussed on the company's activities.
[5]A pseudonym.
On 9 June 2009, a meeting was held between members of the AFP and ACC to discuss a "proposed" joint investigation into XYZ Limited and to "discuss future cooperation" between the AFP and the ACC. The ACC advised the AFP that it had a number of sources who could provide the AFP with further information regarding the allegations against XYZ Limited and reiterated its offer to make its coercive powers available to the AFP to pursue "agreed lines of enquiry". But as will become apparent, there never was any joint investigation.
On 10 June 2009, the Board of the ACC resolved to extend the Financial Crimes Determination for a further 12 months[6], noting "the review of activity conducted" under the 2008 Determination and reaffirming "the view of the Board that the requirements of s 7C(3) … continue to be met". Pointedly, as the primary judge found, there was no amendment of the Financial Crimes Determination to include within its coverage the criminal activity alleged to have been engaged in by XYZ Limited.
[6]Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) Amendment No 1 of 2009.
By July 2009, AFP officers had met with representatives of XYZ Limited on a number of occasions, and XYZ Limited had voluntarily provided the AFP with substantial documents and hard-drive material to assist with the AFP's investigation. The AFP had also approached the ACC to assist the AFP by providing the ACC's compulsive powers under the Financial Crimes Determination. It was proposed that ACC coercive hearings be used in circumstances where the AFP perceived that current XYZ Limited senior executives had knowledge of corrupt practices.
By October 2009, the ACC had confirmed to the AFP that it was prepared to assist by holding examinations. On 6 November 2009, a meeting was held at the ACC's Melbourne office, attended by the lead investigator of Operation Thuja and ACC staff, during which a tentative timetable was set for the examination of XYZ Limited employees and managers who the AFP believed had knowledge of the conduct forming the basis of the allegations. The suspect was proclaimed to be XYZ Limited and all employees were to be viewed as witnesses, not suspects. Shortly after that meeting, Officer Schwartz[7] became the lead investigator of Operation Thuja. On the same day, the Commissioner of the AFP (who was also the Chair of the Board of the ACC) gave Operation Thuja his approval to use the ACC's coercive examination powers.
[7]A pseudonym.
In January 2010, the former lead investigator of Operation Thuja expressed concerns that the Financial Crimes Determination[8] did not cover the AFP's investigation of XYZ Limited's alleged criminal activity. He was overridden by Schwartz, however, and, by February 2010, the investigation had been extended to another company, QRS Limited[9], as well as XYZ Limited.
[8]The primary judge referred to "the money laundering determination", but this appears to be a typographical error as that determination was not made until 9 June 2010: [2016] VSC 334R at [373].
[9]A pseudonym.
In February 2010, Schwartz confirmed in an internal AFP minute:
"The AFP has engaged the [ACC] in relation to Operation [Thuja] in order to extract information and evidence from witnesses and suspects by means of the ACC's coercive powers to conduct examinations. The hearings will be conducted pursuant to the ACC's Financial Crimes/Money Laundering Determination."
On 12 March 2010, it was determined that no joint agency agreement between the AFP and the ACC was required because the examinations to be conducted by the ACC could take place under an existing memorandum of understanding and practical guidelines.
Schwartz stated that as far as the AFP was concerned, the ACC was not even a partner in the AFP's investigation. He described the extent of the ACC's role as being a "facility used by the AFP for compulsory examinations of suspects". He described ACC examinations as "available to the police in all our investigations" and as "a common tool that is traditionally used by police"[10].
[10][2016] VSC 334R at [388].
In April 2010, two of the appellants, Galloway and Hodges, were examined by the ACC, purportedly pursuant to the Financial Crimes Determination.
On 9 June 2010, the Board of the ACC resolved to make a new determination, entitled the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering) 2010 ("the Money Laundering Determination"), for which the Statement in Support stated as follows:
"PURPOSE OF THIS STATEMENT
1.This statement supports a request from the [ACC] for the Board of the [ACC] to –
(a)authorise the ACC under paragraph 7C(1)(c) and subsection 7A(c) of the [ACC Act] to conduct an investigation into federally relevant criminal activity, namely Money Laundering activity in Australia, and
(b)determine under paragraph 7C(1)(d) and subsection 7C(3) of the Act that the investigation is a special investigation.
2.The special investigation will be known as the Money Laundering Special Investigation (ML SI).
…
Does Money Laundering constitute federally relevant criminal activity?
34.As noted above, the scope of money laundering activity is consistent with the definition under Section 4 of the [ACC Act]. The activity involves, or is of the same general nature as: tax evasion, fraud, theft, company violations; cyber crime and other serious offences within the meaning of the Proceeds of Crime Act 2002.
Whether Ordinary Police Methods Of Investigation are Likely To Be Effective
35.Over the past few years, including through accessing data from private sector institutions, the ACC has continued to improve its understanding of trends in major financial crime. These public/private sector partnerships are critical to build knowledge and understanding where criminal networks merge illicit and mainstream activities.
36.On their own, however, such information flows, or in combination with conventional intelligence gathering efforts, may be unable to uncover, and unravel, the most sophisticated and highest threat financial crimes.
37.By their nature, the principals involved in major revenue and other fraud and money laundering offences use complex structures to distance themselves from actions that may be incriminating. Sometimes professional facilitators with specialised expertise assist in concealing criminal proceeds with legitimate investments and transactions. In many cases such strategies may involve offshore arrangements. Multiple, 'shell' and 'phoenix' corporate structures may be employed. In these circumstances, without inside knowledge, access to develop intelligence and evidence on the key protagonists is likely to be limited.
38.The use of ACC coercive powers, integrated with appropriate use of covert investigative techniques, has and is expected to continue to provide key capabilities to overcome these challenges by:
·providing unique and directly actionable intelligence and evidence, and
·providing additional focus to enable more effective utilisation of information already held by law enforcement and regulatory agencies, including the ACC." (footnote omitted)
As in the Financial Crimes Determination, the subject-matter of the investigation was defined in cl 1 of Sched 1 as follows:
"An investigation to determine whether, in accordance with the allegations mentioned in clause 3 and in the circumstances mentioned in clause 2, federally relevant criminal activity:
(a)was committed before the commencement of this Instrument; or
(b)was in the process of being committed on the commencement of this Instrument; or
(c)may in future be committed."
Clause 2 of Sched 1 set out the circumstances constituting federally relevant criminal activity. The introductory paragraph and sub-paragraphs (a) to (d) of cl 2 were identical to the introductory paragraph and corresponding sub-paragraphs in Sched 1 cl 2 of the Financial Crimes Determination[11]. Clause 2 of Sched 1 of the Money Laundering Determination went on to say:
"(e)that criminal enterprise structures are storing significant quantities of cash proceeds from illicit activities, increasing their global networking and employ the inter-mingling of legitimate funds and proceeds of crime, participating in otherwise legitimate commercial enterprises, and some Australian-based criminal groups are using specialised overseas-based transnational criminal networks to launder significant quantities of illicit funds;
(f)banks, equity market and non bank financial institutions are a favoured means of laundering illicit funds nationally and internationally;
(g)effective targeting of the business structures of organised crime entities requires a multi-agency intelligence driven approach at a national level with access to coercive powers."
[11]Above at [21].
Clause 3 of Sched 1 provided that the general nature of the allegations which constituted federally relevant criminal activity was that "from 1 January 1995 certain persons in concert with one another or with other persons, may be engaged in one or more of" a range of Commonwealth and State offences which were similar, but not identical, to those identified in the Financial Crimes Determination. Once again, however, the Money Laundering Determination did not include in the list of relevant criminal activity the activity allegedly engaged in by XYZ Limited; and, as the primary judge observed, that was because it was not the type of criminal activity that seemed to be at the forefront of the ACC's concerns.
On 9 September 2010, the OCMC approved a project to deal with matters arising under the Money Laundering Determination. The HOD stated that it was a narrow project set up to address the remaining issues in relation to XYZ Limited that had not been finalised in the project established under the Financial Crimes Determination. The HOD said that the purpose of the project was to provide Operation Thuja with the examination powers that the ACC possessed, "to the extent that an examiner was prepared to approve them".
In November 2010, the appellants Strickland and Tucker were examined by the ACC, purportedly pursuant to the Money Laundering Determination.
Hodges, Strickland and Galloway were arrested and first charged with Commonwealth offences on 1 July 2011. Tucker was first charged on 13 March 2013.
The appellants' examinations
Prior to their examinations, each appellant had been asked to participate in a cautioned record of interview by the AFP. Each had declined that request.
Mr Sage was an examiner appointed under s 46B of the ACC Act and acted as the examiner for each appellant's examination. The primary judge found that by the time of the examinations of each of the appellants, Sage was aware that they were regarded by the AFP as suspects and as persons who "may be charged" for the purposes of s 25A(9) of the ACC Act.
During the examinations, several AFP officers involved in Operation Thuja watched the examinations from a nearby room. Their presence was not disclosed to any of the appellants. There were six AFP officers in attendance at Galloway's examination; seven at Hodges'; nine at Strickland's; and six at Tucker's.
Following each examination, Sage made non-publication directions under s 25A(9) that permitted dissemination of examination material to the AFP and the Commonwealth Director of Public Prosecutions ("the CDPP"). The ACC provided audio recordings of the examinations of the appellants to both the AFP and the CDPP. In April 2012, some 10 months after Hodges, Strickland and Galloway were charged, the AFP provided electronic copies of their examination transcripts to the CDPP.
The primary judge's reasoning
The primary judge found[12] that, at relevant times, the ACC was conducting a special ACC investigation constituted, sequentially, of the Financial Crimes Determination and the Money Laundering Determination. In the primary judge's view[13], it was sufficient to reach that conclusion that the determinations had been made or, as her Honour accepted, were "in place" or were "operative". The primary judge also appears to have accepted[14] that the examinations were conducted for the purpose of the special investigation, or at least appears to have concluded that she ought not to infer that the examinations were conducted for a purpose that could not be reconciled with the proper exercise of the examination power.
[12][2016] VSC 334R at [343]-[348], [840].
[13][2016] VSC 334R at [343], [347].
[14][2016] VSC 334R at [404], [428], [841].
The primary judge found[15] that, although Sage was the examiner, and, therefore, the statutory office holder with legal responsibility for deciding whether the appellants were to be examined and the matters upon which they should be examined, Sage did not in fact make any of those decisions. The entire examination process was driven by the AFP for the purposes of Operation Thuja. Schwartz decided that the appellants should be examined and Schwartz determined the matters upon which they should be interrogated. Sage did not exercise any independent judgment in relation to the matter: he merely "rubber stamped" the AFP's requests as to who would be examined, which members of the AFP would be in attendance during each examination, and the persons to whom the examination product would be disseminated.
[15][2016] VSC 334R at [390], [395], [448], [509], [537], [845], [849]-[850].
The primary judge found[16] that Schwartz had decided that, if the appellants would not voluntarily answer the AFP's questions, he would force them to answer questions by taking advantage of the ACC's coercive powers. Schwartz considered that forcing the appellants to answer the AFP's questions would yield the prosecution a forensic advantage of locking each appellant into a version of events, on oath, from which the appellant could not credibly depart at trial, and a further tactical advantage that, once the appellant had been examined, the answers given on oath could be used to persuade or induce the appellant to make a statement in admissible form[17]. In an internal AFP minute dated 20 January 2011, Schwartz recorded those views thus[18]:
"The hearings did not substantially add to our current intelligence holdings but did lock certain witnesses into a version of events which may prove valuable in court. The transcripts of the hearings will be disseminated to CDPP so that they may be used in future indemnity or coerced statement assessments."
[16][2016] VSC 334R at [449].
[17][2016] VSC 334R at [407]-[411].
[18][2016] VSC 334R at [408].
The primary judge also found[19] that, in relation to at least two of the appellants, Strickland and Tucker, the AFP's purpose of so forcing the appellants to answer AFP questions was to "trigger them" into making admissions on oath and that Sage knew that that was the AFP's objective in relation to those appellants.
[19][2016] VSC 334R at [426].
By contrast, the primary judge does not appear to have reached a firm conclusion as to Sage's purposes other than that it was not demonstrated that they were improper purposes. Having observed[20] that an improper purpose is not lightly to be inferred, her Honour stated[21] in substance that, while Sage was aware of the AFP's various purposes, it did not follow that the AFP's purposes were Sage's purposes. Her Honour did not state that she found that Sage's purposes were different from Schwartz's purposes but it appears implicit in what her Honour did state that she was not persuaded that they were the same. If so, that suggests that the path of her Honour's reasoning regarding Sage's purposes was that, whether or not Schwartz's purposes were improper, it was not demonstrated that Sage's purposes were the same as Schwartz's purposes, and, therefore, it was not demonstrated that Sage's purposes were improper.
[20][2016] VSC 334R at [404], citing Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 672 per Gaudron J; [1990] HCA 46.
[21][2016] VSC 334R at [428], [847].
The primary judge was clear, however, that Sage had entirely abrogated his statutory responsibilities at every level of the examination process. Her Honour found that Sage had been well aware that the appellants had been regarded as suspects by the AFP at the time of their examinations and that they had declined to participate in cautioned interviews. Accordingly, her Honour found[22] that had Sage turned his mind to the requirements of s 25A(9), it should have been abundantly clear that the appellants were persons who "may be charged" and, therefore, persons entitled to the benefit of the protective provisions in s 25A. Instead of making appropriate orders, Sage made non‑publication orders which would have the effect of completely undermining the appellants' rights to a fair trial[23]. Her Honour added[24] that while Sage's failure to tell the appellants that AFP officers were watching their examinations was not unlawful, his decision deprived the appellants of the opportunity to object or submit that their fair trial rights might be compromised.
[22][2016] VSC 334R at [851]-[853].
[23][2016] VSC 334R at [709], [864], [868].
[24][2016] VSC 334R at [860]-[863].
Further, although the primary judge stated that she was unable to conclude that Sage acted in deliberate disregard of his statutory obligations, her Honour held[25] that it was apparent that he had been "reckless" as to the discharge of his various obligations to an unacceptable degree, and that, if he had exercised his powers independently and with appropriate diligence, those responsible for investigating the alleged offences and preparing the prosecution brief would never have received the information which they received.
[25][2016] VSC 334R at [853], [862], [868], [881].
In fact, as the primary judge found, information obtained from the examinations was used to compile the prosecution brief and to obtain evidence against the appellants in circumstances where the AFP had no entitlement to obtain such information and would not have been able to do so if Sage had not exercised his powers inappropriately. The prosecution had therefore gained an unfair forensic advantage as a result of the prosecution brief having been prepared, at least in part, using information from the examinations. Moreover, as her Honour found[26], numerous investigators who were privy to the examinations would continue to be involved in giving evidence, liaising with witnesses, and suggesting avenues of examination and tactical decisions to be made at trial.
[26][2016] VSC 334R at [814], [816]-[817], [871]-[873], [876].
In the result, the primary judge found[27] in relation to Strickland, Hodges and Tucker that the practical effect of each of their examinations had been to constrain their legitimate forensic choices in the conduct of their trials because of the answers they were compelled to give during those examinations. By contrast, in relation to Galloway, who, subsequent to his examination, participated in an interview with the AFP and voluntarily disclosed matters previously disclosed at his examination and then relied on that and his ACC examination during committal proceedings, the primary judge could not see what remaining forensic disadvantage could be said to result from his compulsory examination[28]. But as her Honour later acknowledged[29], all of the appellants, including possibly Galloway, had been deprived of a forensic choice to test before a jury the basis upon which the documents in the prosecution brief were selected.
[27][2016] VSC 334R at [766], [870].
[28][2016] VSC 334R at [760]-[763], [765].
[29][2016] VSC 334R at [818]-[819], [870].
It followed, in her Honour's view, that it was practically impossible to "unscramble the egg" so as to remove the forensic advantage which the prosecution had improperly obtained, or to ameliorate the forensic disadvantage suffered by at least three of the appellants, with the possible exception being Galloway. Short of creating a new investigative team and conducting a new investigation, it would be impossible to ensure sufficient quarantining of the investigative officers and the prosecutorial team to mitigate the permeation of examination material from the prosecutions[30].
[30][2016] VSC 334R at [877]-[879].
The primary judge noticed[31] the principal authorities in which it has been held that a permanent stay of prosecution is only ever to be granted in rare and exceptional circumstances[32]. But her Honour considered[33] this case to be different from previous cases in which a stay of prosecution has been refused despite illegality or impropriety in the conduct of an ACC examination or the use of examination material. Unlike any of those previous cases, this case involved the deliberate, coercive questioning of suspects for the very reason that they had exercised their right to decline a cautioned police interview, and thereby for the very purpose of achieving a forensic disadvantage for the appellants and a forensic advantage for the prosecution in foreseen future criminal prosecutions.
[31][2016] VSC 334R at [49]-[50].
[32]See Jago v District Court (NSW) (1989) 168 CLR 23 at 31, 34 per Mason CJ, 60 per Deane J, 76 per Gaudron J; [1989] HCA 46. See also R v Glennon (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J; [1992] HCA 16; Dupas v The Queen (2010) 241 CLR 237 at 250 [33]-[35]; [2010] HCA 20.
[33][2016] VSC 334R at [880].
On that basis, the primary judge concluded[34] that the prosecutions should be permanently stayed not only because of the forensic disadvantage to which the appellants have been subjected as a result of the unlawful dissemination of the examination product but also in order to protect public confidence in the administration of justice.
[34][2016] VSC 334R at [883].
The Court of Appeal's reasoning
By contrast to the primary judge, the Court of Appeal found[35] that there was never an ACC investigation at any stage of the process and that the results of the examination or examination product were never intended to be used by the ACC for any ACC investigative purpose. The conduct of each examination was merely a step in the AFP investigation with the result that the product was only ever to be used by the AFP. It followed, their Honours held, that the appellants' examinations were not conducted "for the purposes of a special ACC investigation" but for an extraneous, improper purpose of assisting an AFP examination. Consequently, the decisions to conduct the examinations and the decisions to permit disclosure of material from the examinations to the AFP and the CDPP were unlawful[36].
[35]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [187]-[189], [209].
[36]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [212].
Despite so concluding, however, the Court of Appeal considered that the primary judge had erred in holding that the prosecution was unfairly advantaged by the examinations. The Court of Appeal reasoned[37] that the appellants had failed to identify any evidence which was to be relied on by the prosecution which, but for the examinations, would not have been obtained by the prosecution. Alternatively, their Honours said that, even if investigators derived some assistance from the examinations in "guiding" and "refining" subsequent documentary searches, the case against the appellants rested almost entirely on documents and had not been materially affected by the results of the examinations. Nor had the appellants sought to establish that information obtained during the examinations assisted the prosecution. To the contrary, each appellant's case before the primary judge had been that the prosecution's case against him was so much developed by the time of his examination that the information extracted in the course of examinations accorded with the prosecution case theory. And, their Honours said[38], if a claim of specific forensic advantage were to be pursued, it was incumbent on each appellant as a matter of fairness to put to each prosecution witness the advantages which it was said the witness obtained from the examination or examination product and enable the CDPP to call evidence in rebuttal. Subject to one insignificant exception, nothing of that kind had been undertaken.
[37]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [258]-[266].
[38]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [270]-[271].
The Court of Appeal further rejected[39] the appellants' contentions, which relied upon the observations of Hayne and Bell JJ in X7 v Australian Crime Commission ("X7 (No 1)")[40], that, even where answers given at a compulsory examination are kept secret, they are productive of forensic disadvantage in the sense that an examinee can no longer decide the course to be adopted at trial according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial or the strength of the evidence led by the prosecution at trial. The Court of Appeal considered[41] that, in view of concessions made by counsel for the appellants, the position that obtained accorded with the observations of Gageler and Keane JJ in Lee v New South Wales Crime Commission ("Lee (No 1)")[42] that they were unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the capacity of an examinee's legal representatives at trial to lead evidence, cross‑examine or make submissions inconsistent with evidence given by the examinee at a compulsory examination.
[39]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [285]-[289].
[40](2013) 248 CLR 92 at 142-143 [124] (Kiefel J agreeing at 152 [157]); [2013] HCA 29.
[41]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [297]-[299].
[42](2013) 251 CLR 196 at 316 [323]; [2013] HCA 39. The Court of Appeal also referred to X7 v The Queen (2014) 292 FLR 57 at 78 [108]-[109] per Bathurst CJ (Beazley P, Hidden J, Fullerton J and R A Hulme J agreeing at 79 [114], [116]-[118]) and Zhao v Commissioner of the Australian Federal Police (2014) 43 VR 187 at 204 [48].
Alternatively, the Court of Appeal held[43], if particular lines of cross‑examination of AFP officers might be impeded, for example, because an investigator needed to explain that he or she had not conducted a line of enquiry or search because of what was said in the compulsory examination, the disadvantage to the appellants thereby created could be sufficiently ameliorated by trial directions that the investigator refrain from explaining his or her actions by reference to what the investigator had learned or believed that he or she had learned from the compulsory examinations.
[43]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [301].
Finally, the Court of Appeal rejected[44] the primary judge's conclusion that, because of Sage's "reckless" disregard of his statutory responsibilities, it was necessary to stay the prosecutions to protect confidence in the administration of justice. Their Honours reasoned that, given that the primary judge had not found that Sage had adverted to the possibility that his actions with respect to s 25A(9) were unlawful, it was not open for her Honour to conclude that Sage had acted recklessly, and further, that anything short of reckless disregard of responsibilities would not suffice to bring the case within the exceptional category of cases in which, absent unfairness, a stay is necessary to preserve public confidence in the administration of justice. Their Honours found it unnecessary to deal separately with the primary judge's conclusion that Sage had also been reckless with respect to his obligations under s 25A(7), as they regarded that conduct as involving no unlawfulness.
[44]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [108]-[109], [116]-[117], [312].
Accordingly, the Court of Appeal held[45] that because they rejected the "twin bases" on which the primary judge had ordered a stay, being the primary judge's findings as to recklessness and incurable forensic disadvantage, the appeal should be allowed and the stay applications refused. Their Honours added that, although not mandatory, a change in prosecutorial team and the ability of the trial judge to make directions enjoining the investigators from disclosing the contents of the ACC examinations to the prosecutor, or the CDPP from leading evidence, or prohibiting certain matters from being referred to in cross‑examination, would ensure that the appellants receive a fair trial.
[45]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [314]-[315].
Absence of special ACC investigation
The Court of Appeal were correct to hold that there was no special ACC investigation into the matters the subject of the AFP investigation or otherwise relevant to the examination of the appellants. As the primary judge found, there was no evidence that the proposal of the ACC Operations Manager to conduct preliminary discussions with witnesses ever proceeded. No investigation head was ever appointed, and no ACC staff were ever assigned to investigate the allegations involving XYZ Limited. The ACC referred the allegations to the AFP on 22 April 2009 and thereafter did not undertake any investigation of XYZ Limited. The ACC acted at all times simply as a facility for the AFP to cross‑examine the appellants under oath for the AFP's own purposes.
The determinations were incapable in and of themselves of constituting a special ACC investigation. At most, they amounted to authorisations for the conduct, in future, of investigations yet to be identified or undertaken and a stipulation that, if in future any such investigation were conducted, it would be a special ACC investigation. The question of whether such an investigation was conducted was a question of fact and the availability of the examination power depended on the existence of an investigation in fact[46]. As the Court of Appeal observed[47], there are at least four considerations which conduce to that conclusion. First, as is apparent from s 24A of the ACC Act, the power to conduct an examination is an ancillary power available to be used "for the purposes of a special ACC operation/investigation". As was held in GG v Australian Crime Commission[48], that implies that it is a power which is available for the purposes of a particular investigation. Otherwise, an ACC examiner required to make a determination whether to invoke the power could not sensibly decide whether the proposed examination would be "for the purposes of" that investigation. Secondly, in order to construe s 24A as authorising the invocation of the examination power in the absence of an extant special ACC investigation, it would be necessary to strain the meaning of the words "for the purposes of a special ACC operation/investigation" to include the meaning "for the purposes of examining persons in relation to matters which are not the subject of an ACC investigation". Thirdly, inasmuch as s 25A(6) provided for the presence of "counsel assisting the examiner … in relation to the matter to which the ACC operation/investigation relates" and authorised counsel assisting to ask questions on any matter judged by the examiner to be "relevant to the ACC operation/investigation", the provision implicitly assumes the existence of a separate ACC investigation and thus a "matter" to which that specific investigation relates and hence to which the questions may be relevant. Fourthly, to hold otherwise would be to read "for the purposes of a special ACC operation/investigation" as meaning for the purpose of any line of enquiry, howsoever suggested, and of whatever significance or insignificance, as to a matter which perchance satisfies the description of one of the kinds of federally relevant criminal activity delineated in a determination. Given the nature of the examination power, and its effect upon the liberty of the subject, that is not a construction which presents as at all probable[49].
[46]Whether the determinations would have been effective to render any such investigation a special ACC investigation is a question of law which, for present purposes, need not be decided.
[47]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [174]-[179].
[48](2010) 182 FCR 513 at 522 [31] per Jessup and Tracey JJ (Downes J agreeing at 515 [3]).
[49]See Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139; [1980] HCA 49.
Contrary to submissions which were advanced before this Court by the Solicitor-General of the Commonwealth on behalf of the ACC (which was an intervener before the primary judge and the Court of Appeal and thus a respondent before this Court[50]), it does not detract from that conclusion that the primary purpose of the ACC may be to obtain evidence that can be used to prosecute persons who have committed serious offences. Whatever the ambit of the ACC's powers, they are constrained by the ACC Act to be exercised only in the circumstances and only for the purposes for which the Act provides.
[50]High Court Rules 2004 (Cth), r 41.01.1; Thomas v The Queen [2008] HCATrans 258 at 709-790.
Contrary also to the Solicitor-General's submissions, it is not the case that the legislative antecedents of the ACC Act imply that the Act should be construed as authorising the ACC generally to lend its compulsory interrogation powers to the AFP whenever the AFP has under investigation a federally relevant criminal offence that is listed in a determination. The compulsory powers conferred on ACC examiners by Div 2 of Pt II of the ACC Act are by design, in terms and in effect available for use only for the purposes of a specific ACC investigation which the Board has determined, after consideration of whether ordinary police powers in relation to the matters the subject of investigation are likely to be effective, will be a special ACC investigation[51]. They are not available to be let out to the AFP whenever an AFP suspect declines to be interviewed, for the purpose of compelling the suspect to make admissions in relation to the offence of which he or she is suspected.
[51]See generally Australia, Senate, Australian Crime Commission Establishment Bill 2002, Revised Explanatory Memorandum at 1‑2, 6, 9‑10, 17‑18; Australia, House of Representatives, Parliamentary Debates (Hansard), 26 September 2002 at 7329; X7 (No 1) (2013) 248 CLR 92 at 149‑150 [144]‑[147] per Hayne and Bell JJ (Kiefel J agreeing at 152 [157]).
It follows, as the Court of Appeal held, that, since the examinations of the appellants were not held for the purposes of a special ACC investigation, there being no ACC investigation on foot, but rather for an extraneous, unlawful purpose of assisting the AFP to compel the appellants to give answers to questions about offences of which they were suspected and had declined to be interviewed, the examinations were unlawful.
Forensic advantage and disadvantage
The Court of Appeal were not correct, however, in rejecting the primary judge's conclusion that the prosecution derived a forensic advantage from the examinations. If nothing else, the prosecution derived the forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial. For the same reason, the primary judge was right to hold that, with the exception perhaps of Galloway, the appellants suffered a forensic disadvantage as the result of the examinations. They suffered the forensic disadvantage of being locked into a version of events from which they could not credibly depart at trial.
As Hayne and Bell JJ observed[52] in X7 (No 1) in relation to an unlawful compulsory examination conducted post charge, even if the answers given at a compulsory examination are kept secret, and so cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers after being charged fundamentally alters the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial and adversarial trial in the courtroom. The examinee can no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial:
"The accused person would have to decide the course to be followed in light of that material and in light of any self‑incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge."
[52](2013) 248 CLR 92 at 142-143 [124] (Kiefel J agreeing at 152 [157]). This reasoning was adopted by this Court in Lee v The Queen (2014) 253 CLR 455 at 466-467 [32]; [2014] HCA 20. See also Lee (No 1) (2013) 251 CLR 196 at 236 [79] per Hayne J, 261 [159] per Kiefel J, 292-293 [264]-[265] per Bell J.
First, a central issue in dispute on these appeals was whether the primary judge was correct to characterise the state of mind and conduct of the ACC examiner as reckless. The Court of Appeal held that this description by the primary judge was erroneous because the ACC examiner was not shown to have proceeded with knowledge of his obligations but without concern for them[314]. However, her Honour's decision rightly did not depend upon the precise epithet used to describe the ACC examiner's state of mind and conduct. Whatever shorthand description is used, her Honour found that the ACC examiner exercised no independent judgment in relation to the central matters concerning the examinations.
[314]Director of Public Prosecutions (Cth) v Galloway [2017] VSCA 120 at [108]‑[109].
Secondly, throughout these appeals the appellants referred many times to the "discretionary" decision of the primary judge. The CDPP carefully avoided the use of that adjective. But no doubt was cast by the CDPP upon the observation of four members of this Court in Batistatos v Roads and Traffic Authority (NSW)[315] to the effect that judicial restraint should be exercised when considering an appeal from a decision to grant a permanent stay to protect the integrity of the court. That observation contrasts with the lack of judicial restraint on an appeal from a decision concerning the "public policy" exclusion of evidence to protect the integrity of the court in s 138(1) of the Evidence Act 2008 (Vic)[316].
[315](2006) 226 CLR 256 at 264 [7], cf at 321-322 [223].
[316]Heydon, Cross on Evidence, 11th Aust ed (2017) at 1080 [27315]. See also R v Bauer (a pseudonym) (2018) 92 ALJR 846 at 864 [61]; [2018] HCA 40.
On the assumption that the decision of the primary judge was one about which judicial restraint should have been exercised on appeal, the conclusion that she reached was open to her. But even if the assumption of judicial restraint were abandoned, for the reasons I have expressed above the primary judge's decision was correct, as bolstered by the finding of the Court of Appeal that there was no special ACC investigation.
Conclusion
It is an extreme measure to stay proceedings permanently as an abuse of process on the basis that the administration of justice would be brought into disrepute. But a permanent stay can be ordered where, despite the public interest in prosecuting reasonably suspected crime, no less extreme remedial measure will sufficiently avoid the damage to the integrity of the court. The integrity of the court would be impaired by trials of the appellants. No lesser remedial measure was offered or available to prevent the stultification of key safeguards in the ACC Act and the achievement of the unlawful purposes for which those safeguards were contravened.