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. Continue reading →