The High Court has allowed appeals by four criminal defendants, upholding a trial judge’s stay of their prosecutions. The defendants were employees or managers of a company whose suspected criminal activity was first reported to the Australian Crime Commission in December 2008. Five months later, the ACC decided not to investigate the company but instead referred its alleged crimes to the Australian Federal Police. In 2010, pursuant to an agreement between the ACC and the AFP, an ACC examiner questioned the four defendants. In each case, the defendants first declined a request to participate in interviews under caution with the AFP and then were required to answer the examiners questions under threat of criminal punishment. The examiner, despite being aware that all four were criminal suspects, allowed between six and nine AFP officers to secretly watch the examinations from an adjoining room and made directions that permitted the examination recordings and transcripts to be made available to the AFP investigators and the staff of the Commonwealth Director of Public Prosecutions. The defendants were later charged with the federal offence of bribing a foreign official and the Victorian offence of false accounting. The trial judge found that the examinations were authorised by the ACC Act, but ordered a permanent stay of the prosecutions. Victoria’s Court of Appeal unanimously reached the opposite conclusions, holding that the examinations were illegal, but overturning the stay. At both the trial and (over the defendants’ objections) the appeal, the ACC was given leave to intervene.

A 5-2 majority of the High Court (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ, Gageler and Gordon JJ dissenting) allowed the defendants’ appeal to the High Court and dismissed the Cth DPP’s appeal to the Court of Appeal. Citing suppression orders made in other courts, the Court temporarily barred the public release of the full, unredacted reasons for judgment until 10am on 14th November 2018. As noted by Gageler J at [116], ‘[b]y orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record, the appellant in each appeal has been assigned a pseudonym. The appellants are referred to as Mr Strickland, Mr Galloway, Mr Hodges and Mr Tucker. The company for which all of them once worked has been assigned the pseudonym XYZ Ltd.’

Legality of the examinations

The Court unanimously upheld the Court of Appeal’s finding that the ACC examiner’s questioning of the four defendants  was unlawful. The plurality (Kiefel CJ, Bell & Nettle JJ) found that there was no evidence that the ACC had decided to conduct a special investigation into the suspect company (at [71]) and that general determinations by the ACC that various financial crimes and money laundering could not be investigated by traditional methods did not suffice  ([72]). The absence of a decision to conduct a special investigation means that the coercive question was illegal, because the statute describes coercive questioning as ancillary to and for the purposes of a special investigation. Neither the ACC’s purpose of assisting in prosecutions nor a history of wider powers supports allowing the restrictions on liberty that would follow if coercive questioning could occur absent a special investigation ([73]-[74]). Gageler J, Keane J, Gordon J and Edelman J reached similar conclusions at [131], [175]-[176], [225] and [274].

Four judges (the plurality at [86]-[88], Gageler J agreeing at [128]) also upheld the trial judge’s findings that the ACC examiner ‘recklessly’ disregarded his statutory obligations when he permitted AFP officers to be present at the questioning and allowed recordings and transcripts to be distributed to AFP investigators and federal prosecutors, holding that the trial judge used the term ‘reckless’ to refer to ‘heedlessness or indifference’, rather than the criminal law sense of actual awareness of possible illegality. The plurality noted that the examiner’s reasons for questioning simply parroted the AFP’s, the conduct of the questioning breached AFP and ACC documents setting out the ACC’s policy on such questioning ([89]-[91]) and his directions denied the defendants the benefit of a statutory provision protecting their right to a fair trial ([94]). Although the High Court in 2016 upheld similar questioning of four police officers by Victoria’s anti-corruption commission, the difference in this case was that the coercive questioning lacked statutory authorisation ([95]-[96]).

Keane J (at [180]) held that ‘[i]n this context, there is no reason to draw a distinction between a deliberate or reckless disregard of the requirements of the Act by agents of the executive government on the one hand, and an incompetent disregard of the law on the other. In either case, the disregard of the law leads to an episode of lawlessness apt to defeat the purpose of the Act.’ Edelman J reached a similar conclusion at [294].

By contrast, Gordon J (at [225]) found that, while the ACC’s conduct was ‘deliberate’, ‘the ACC and its staff did not consider what they were doing was unlawful; they simply failed to turn their minds to the specific requirements of the ACC Act and failed to consider, let alone keep at the forefront of their minds, that their actions might prejudice the fair trial of a person who may be charged with an offence.’ She added (at [238]): ‘If the ACC’s conduct warrants criticisms of the kind and intensity levelled by the plurality, those criticisms would be relevant only if seeking to punish the ACC.’

Consequences for the defendants

The plurality held (at [75]) that the defendants ‘suffered the forensic disadvantage of being locked into a version of events from which they could not credibly depart at trial.’ Even if the examination is kept secret, ‘[t]he 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’ ([76]). Instead, ‘[s]uch a person must decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to the answers which he or she has been unlawfully compelled to give at the examination’ ([78]). So long as the defendant gave at least one incriminating answer (as at least three defendants did), the ‘specific respects in which the person’s defence will or may be compromised’ do not matter,([79]). The plurality also held (at [80]) that the replacement of the prosecuting team was ‘no answer to the forensic disadvantage’, because the dissemination of the documents was ‘extraordinarily wide-ranging’ and ‘undocumented’.

The plurality further noted that the trial judge found that the defendants’ answers influenced the investigators’ selection of documents as part of their case ([82]) and that the circumstantial and documentary nature of the case means that the defence needs to argue that the prosecution case was misleading and selective ([82]). The extent of the dissemination and the lack of information about it means that the proposed solution of witnesses avoiding mentioning how they selected the documents had an ‘air of unreality’  ([83]) and the defendants had no means to attack the prosecution’s selection of documents ([84]). The plurality added that any serious defence attempt to discredit the prosecution ‘would have risked exacerbating the prejudice… by potentially exposing perceived weaknesses in the prosecution case and possible paths of available defences’. The plurality concluded that, short of restarting the investigation from scratch with new investigators, ‘the prejudice to a fair trial is at least to a significant extent incurable’ ([84]).

By contrast, Gageler J (at [135]) held that ‘[e]ven if it could be said that the extent of the derivative use of the unlawfully extracted and disseminated information in assembling the prosecution brief was sufficient to give the AFP a substantial investigative advantage, that investigative advantage did not of itself amount to a forensic advantage to the CDPP or disadvantage to’ the four defendants. He reiterated (at [140ff]), his earlier view from 2014 that there is no disadvantage ‘merely by reason of an ethical constraint on the ability of a criminal defendant’s legal representatives to lead evidence or cross-examine or make submissions to suggest a version of the facts which contradicts that testimony’, as each defendant is free to depart from the earlier answers and his or her legal representatives are bound to accept that departure, and the representatives can still ethically attack the prosecution case regardless (see also Gordon J at [241].) Gageler J also held (at [145]) that ‘[t]o the extent that the unlawfully extracted and disseminated testimony of the appellants has come into the possession of officers of the CDPP, engagement of a new prosecution team is precisely the kind of remedial measure’ that is appropriate. He further held (at [146]-[147]) that any prejudice from AFP witnesses’ knowledge of the examinations could be managed by ‘appropriately tailored interlocutory orders confining the scope of those witnesses’ permitted testimony, without any greater difficulty than those occasioned by evidentiary privileges, concluding that ‘[i]f a real and insurmountable problem were to be encountered in the course of cross-examination, the issue of a permanent stay could be re-agitated at that time.’

Gordon J outlined (at [234ff]) the measures the trial judge had ordered to separate the investigators from the prosecutors.  She observed (at [238]) that no problem arising from examination of the AFP witnesses had arisen so far as the trial had not yet commenced and that the trial judge could manage any problems that arise, for example by a direction that the prosecution evidence may be unreliable. Gordon J concluded: ‘Foresight, like hindsight, is dangerous. Trial judges can and do deal with what is before them. It should be left to the trial judge to deal with any issue if it arises’ ([239]).

Keane J and Edelman J each held (at [182] and [259]) that the prosecution should be stayed regardless of any actual disadvantage faced by the defendants.

Consequences for the administration of justice

The plurality observed (at [86]) that its conclusion on each defendant’s forensic disadvantage did not ‘of itself constitute a sufficient basis to stay his prosecution’. Rather, it was the combination of that disadvantage with the ACC examiner’s reckless unlawful conduct that meant that’ the continued prosecution… would bring the administration of justice into disrepute’. While deliberate disregard of statutory provisions entails ‘greater moral culpability’, these appeals turn on the distinction between mere peripheral failures and a duty or obligation ‘of a kind that goes to the very root of the administration of justice’ ([100]). Although Parliament can overturn the right to silence by statute, the ‘invocation of the power for a purpose other than the specific, identified purpose, or that otherwise does not accord strictly with the statute, flouts the will of the Parliament as expressed through the statute and as such is an unlawful infraction of the common law right to silence that cuts deep against the grain of the accusatorial nature of the criminal justice system’ ([101]). Discussing the Commonwealth Attorney-General’s argument that, had the ACC determined to investigate the company itself, it could have acted precisely as the examiner did in this case, the plurality held that ‘there is little reason to suppose that the Board of the ACC would have been disposed to make it a special ACC investigation’ ([104]) and, if it had, the examiner would have been strictly constrained to obey the statute’s protections ([105]).

The plurality concluded (at [107]): To condone such grossly negligent disregard of statutory protections and fundamental rights as occurred in these cases would be to encourage further negligent infractions of the strict statutory requirements of Div 2 of Pt II of the ACC Act and thus of the common law right to silence.’ A refused stay may leave ACC officers contemplating breaching statutory rules ‘confident in the knowledge that this Court would wave through the results on condition only that there be a change of prosecutorial team and such trial directions as it might be hoped would ameliorate the prejudice thereby caused to the persons whose statutory and common law rights have thus been abused.’ Such an outcome ‘would so much bring the administration of justice into disrepute that the prosecutions should be stayed.’

Keane J adopted McHugh J’s 1994 formulation of three categories of abuse of process, noting that the third category – where ‘the use of the court’s procedures would bring the administration of justice into disrepute’ – is made out where ‘the unlawful conduct that has occurred would affect the trial in prospect in a way that is contrary to the purpose of the applicable legislation’ ([172]). He found that ‘[t]he evident purpose of the [ACC] Act is that a person who has been compulsorily examined under the Act and who comes to be tried for an offence related to the subject matter of the compulsory examination should then be subject to the ordinary processes of a criminal trial under the general law’ ([183]). The ACC’s failure to follow its Act ‘was not only inexcusable; it was also apt to defeat the legislative purpose that the criminal trial of an examinee should not be affected by lawless conduct which occurred in pretended compliance with the Act’ ([187]). He distinguished this case from one where evidence was obtained in breach of a general law such as property law; here, ‘the legislation which has been disregarded discountenances the forensic use of information obtained in breach of its provisions’ [190].

Keane J observed (at [191]) that ‘[t]he issue reduces then to whether a court of trial might be required to alter the ordinary processes attending a criminal trial in order to neutralise the consequences of the ACC’s failure to adhere to the Act without bringing the administration of justice into disrepute’. The primary consideration is that the courts ‘should not give effect to a preference for the wishes of the executive government over the legislative purpose’, specifically by ‘unusual steps specifically to accommodate a bid by the executive government to overcome a deficit in the integrity of a trial’ ([192]). The Court of Appeal’s proposed solution ‘is not a familiar and uncontroversial judicial process, such as the editing out of material that is irrelevant or insufficiently relevant to the fact-finding function of the jury, but the judicial suppression of relevant evidence that might affect the jury’s assessment of the credibility of the witness’ ([195]).

Edelman J adopted the reasons of Keane J, but wrote separately ‘in light of (i) the importance of the power to stay proceedings as an abuse of process, and (ii) the divergence of views about its scope and application’ ([255]). Observing  the executive has the function of initiating and maintaining criminal proceedings and the courts have the function of hearing and determining them, ‘ in an integrated justice system, these two functions are not hermetically sealed from each other’; ‘In protecting its ability to function as a court of law in the future, the court can make orders that cut across the executive function of initiating and maintaining a criminal proceeding’ ([260]). Here, the question is whether ‘the trial must be stayed due to the threat to the integrity of the court arising from the systemic incoherence that would result if the trial were allowed to proceed’ ([261]). He observed that there were powerful reasons not to stay the proceedings, including seriousness of the offences of bribery and false accounting, the defendants’ significant role in the alleged offending and the availability of curial orders that could ‘reduce substantially’ the forensic disadvantage the defendants faced ([284]); however, ‘to allow the trial to proceed, however fairly it may be conducted, would effectively stultify the operation of essential provisions of the ACC Act’ ([285]).

Edelman J conceded that this is not a case where ‘where the prosecution could not have occurred but for the unlawful conduct’ ([287]); however, ‘the failure of the appellants to prove strict causation or the precise contribution made by the unlawful conduct should not prevent the conclusion that a permanent stay is necessary to protect the integrity of the court’ ([289]) for two reasons: (1) ‘as to the extent of the contribution, that information was peculiarly within the knowledge of the AFP and the prosecution’ ([290]); (2) ‘there is no requirement for proof of a strict causal connection between the conduct and the obtaining of the unlawful evidence’ ([291]). He concluded: ‘It is telling that neither the ACC nor the CDPP ever suggested that it might be a realistic alternative to recommence, from scratch, an assessment of up to, or even more than, 80 million documents, but without the benefit of the appellants’ unlawful examinations. To use the primary judge’s metaphor, the egg could not be unscrambled. Allowing the trials to proceed would undermine the statutory regime and compromise the integrity of the court’ ([292]). He added that, whether or not appeal courts should approach the trial judge’s decision with ‘judicial restraint’, the trial judge’s decision to stay the proceedings should be upheld ([296]).

By contrast, Gageler J held (at [150]) that neither the purpose of ‘locking’ the defendants in to a version of events on oath nor the purpose of assisting the AFP to assemble a brief of evidence ‘was an improper purpose in the conventional sense of a statutorily extraneous purpose which would render unlawful an examination which was otherwise lawful under the ACC Act’,  but were rather ‘the inevitable consequence of the form of compulsory examination which the ACC Act specifically authorises.’ He observed that ‘the power of a superior court to stay its own proceedings as an abuse of process… is not a power to discipline or to punish those who might bring those proceedings or those who might stand behind them’ ([154]). He concluded: ‘Neither in permitting the proceedings to continue nor in implementing procedural measures for the purpose of avoiding substantial unfairness in the conduct of those proceedings can the court seized of jurisdiction in the proceedings realistically be characterised as tolerating or excusing the unlawful conduct which has occurred…. Courts must be made of sterner stuff lest the public’s confidence in them be eroded by their own timidity’ ([163]). Gageler J noted (at [167]-[168]) that ‘a permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant, leaving that criminal defendant under an “irremovable cloud of suspicion” and leaving the potential if not the likelihood of engendering within the community “a festering sense of injustice”, if not cynicism’ and that ‘[t]he public interest in the disposition of charges against a criminal defendant is no less in respect of criminal defendants charged with crimes of dishonesty than in respect of those charged with crimes of malice’. Gordon J reached a similar conclusion at [244].

The ACC’s intervention

The plurality (at [108]ff) allowed the defendants’ objection to submissions by the ACC about the meaning of the ACC Act or the lawfulness of the ACC’s actions, submissions that the Cth DPP did not adopt. The plurality observed that ‘the Crown appears by the CDPP and so it is for the CDPP and for no one else to represent the community’ and that ‘[v]ery occasionally, the Court may hear an intervener on a criminal appeal’ but only where the Crown embraces the intervenor’s submissions or the intervenor directly supports the Crown’s submissions ([109]). Otherwise, the intervenor should not ‘ordinarily be heard’ as ‘It would be unfairly prejudicial to the putative offender in that it would require him or her in effect to meet two different cases’, a difficulty that is not alleviated by the CDPP announcing that she neither supports nor opposes the intervenor’s submissions ([109]-[110]). Although the ACCs submissions would be rejected in any case, ‘the objection should be upheld’ ([111]).

Outcome

The result is that a majority of the Court (Gageler J & Gordon J dissenting) restored the trial judge’s order permanently staying the prosecutions of the four defendants.