CDPP v Brady and Ors [2016] VSC 334

CRIMINAL LAW - ACC coercive examinations - Examinations for the purpose of a special ACC operation/investigation: s 24A - Summoning of persons: s 28 - The examination of suspects - Privacy of examinations: s 25A(3) - Informing witnesses of presence of persons at examination: s 25A(7) - Members of ACC staff: s 4(1)

CRIMINAL LAW - Non-publication directions - Requirements of s 25A(9) - Whether examiner complied with requirements

PRACTICE AND PROCEDURE - Application for permanent stay - Forensic disadvantage - Use of examination material - "Locking in" accused - Locating documents - Obtaining witness statements - Compilation of briefs - Voluntary disclosure - Inability to quarantine ACC material from indirect use - Whether fair trial possible - Whether stay should be granted

CONSPIRACY - General principles - Foreign bribery offence - Co-conspirator's rule - Availability of substantive offences - Duplicity - Conspiracy between a company and a director - Adequacy of particulars of charge - Criminal Code Act 1995 (Cth) ss 11.5, 70.2.

DISMISSAL IN THE INTERESTS OF JUSTICE - Meaning of interests of justice - Onus of proof - Nature of relief - Whether factors relevant to dismissal must be related to conspiracy charges - Possible alternative charges - Aiding and abetting - Commission by proxy - Territoriality provisions - Whether alternative charges are sufficient and effective - Other relevant considerations - Criminal Code Act 1995 (Cth) ss 11.2, 11.3, 11.5, 70.2, 70.5.

STAY OF PROCEEDINGS - Abuse of process - Right to a fair trial - Deficiencies or malpractice in investigation - Delay - Prejudicial publicity.

1 The six accused are all former employees of Note Printing Australia Limited ("NPA") or Securency International Pty Ltd ("Securency").[1] At the relevant times, NPA was a wholly-owned subsidiary, and Securency was a partially-owned subsidiary, of the Reserve Bank of Australia. NPA prints banknotes for the RBA and other central banks, using polymer substrate supplied by Securency.

2 The accused have all been charged with conspiring to bribe foreign bank officials, contrary to ss 11.5(1) and 70.2(1) of the Criminal Code Act 1995 (Cth) ("the Code"). Some of them have also been charged with false accounting, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic), in relation to payments made in connection with foreign agents. The offences are alleged to have occurred in order for NPA or Securency to secure banknote printing contracts with central banks in Malaysia, Indonesia and Nepal, at various dates between late 1999 and late 2003.

(a) The charges against four of them ("the ACC accused") be permanently stayed, on grounds arising out of their compulsory examination by the Australian Crime Commission ("the ACC application");

(b) Further or in the alternative, the charges against all of them be permanently stayed, primarily on the basis that to do otherwise would require them to face unfair trials ("the alternative stay application");

(c) Alternatively, all of the conspiracy charges be dismissed in the interests of justice, under s 11.5(6) of the Code ("the dismissal application").

4 For the reasons that follow, I have determined that it is appropriate to permanently stay the proceedings against the ACC accused, and otherwise dismiss the applications.

5 John Leckenby, Barry Brady, Peter Hutchinson and Myles Curtis were arrested and first charged on 1 July 2011. Christian Boillot, a French citizen, was arrested in Germany on 1 July 2011, extradited to Australia and charged. Steven Wong was first charged on 13 March 2013. All of the accused have been on bail since they were charged.

6 The combined committal proceedings ran for 112 sitting days, over a period of more than 2 years, between August 2012 and March 2014.[2] Their completion was delayed, in part, by appeals to this court concerning the service of certain witness summonses by Leckenby.[3]

7 NPA and Securency avoided the committal process, by agreeing to be directly indicted in this court. On 5 December 2011, both companies pleaded guilty to being parties to foreign bribery conspiracies in Indonesia and Malaysia. Securency also pleaded guilty to a conspiracy charge relating to Vietnam. NPA also pleaded guilty to a similar charge relating to Nepal. On 17 July 2012, I sentenced the two companies, imposing fines on them both.[4] They had already been the subject of substantial pecuniary penalty orders, made in the County Court of Victoria in November 2011.

8 On 20 August 2012, I sentenced David Ellery, the former Chief Financial Officer of Securency, in respect of a single count of false accounting in Malaysia.[5] That offence occurred in mid-2006, well after the period of any of the alleged conspiracies. Ellery undertook to assist the CDPP in relation to the prosecution of the individuals alleged to have been involved in foreign bribery. In October 2012, Ellery gave evidence at the committals in relation to Indonesia, Malaysia and Vietnam.

9 On 3 October 2013, I sentenced Radius Christanto, the former Indonesian agent of NPA and Securency, in respect of a single foreign bribery conspiracy charge in Indonesia.[6] He gave an undertaking to assist the prosecution, and gave evidence at the committals.[7]

(a) No individuals were committed to stand trial in relation to the Vietnamese or Nepalese conspiracies;[8]

(b) In relation to the Indonesian conspiracy, the CDPP withdrew the charges against Hutchinson and Mitchell Anderson,[9] and the magistrate discharged Leckenby and partially discharged Curtis; and

(c) In relation to the Malaysian conspiracy, Brady and Clifford Gerarthy[10] were discharged, and Curtis, Leckenby and Boillot were committed to stand trial.

11 The current proceedings in this court were commenced by the filing of indictments by the Commonwealth Director of Public Prosecutions at various times between December 2013 and May 2014.[11] In some cases, the accused had been committed to stand trial for the relevant charges; in most cases, the CDPP exercised his power to directly indict, after the accused had been discharged at committal.

12 There is one other person who is currently facing a single charge of false accounting in Malaysia, namely, Gerarthy.[12] He is not a party to the current stay or dismissal applications.

13 At the committals, the accused sought to have the conspiracy charges dismissed in the interests of justice under s 11.5(6) of the Code, on many of the grounds relied upon here, including prejudicial publicity, and misconduct by the investigators and prosecutors. However, in McKenzie, the Court of Appeal held that a magistrate has no power to dismiss under s 11.5(6).[13]

14 Once all the indictments had been filed in this court, the accused foreshadowed that they proposed to make the current applications. Timetables and procedural matters were finalised over several directions hearings. The parties' initial estimate was that the evidence for the ACC application would take a couple of weeks, and the hearing of all three applications would be completed in just over one month.

15 Since these proceedings were commenced, there have been further developments in the law regarding the relevant provisions of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). To some extent, that affected the way that arguments developed and evidence was led.

16 On 28 August 2014, early in the hearing of the ACC stay application, I granted the ACC leave to intervene in the application; no party opposed that course. That leave was limited to making oral and written submissions in relation to issues affecting the ACC (including the examiner, as well as ACC staff), and objecting to the leading of evidence on the grounds of legal privilege or public interest immunity. The ACC did not seek to call or examine any witness; all ACC witnesses were called by the CDPP.

17 Many of the relevant ACC documents were provided to the ACC accused in response to subpoenas issued for the purposes of this hearing. The accused also made numerous calls on the ACC, AFP and CDPP, to produce unredacted versions of documents that had been provided in a redacted form. During the course of the hearing, I inspected the unredacted versions of a very large number of documents, and heard submissions concerning them, in order to rule on numerous claims to legal privilege or public interest immunity (including claims by non-parties, such as the AFP or AUSTRAC), a task which would also need to be done before any trial could proceed. On occasions, this process led to the disclosure to the accused of previously redacted material, some of which was of considerable importance to the current applications.

18 During the course of the hearing of the ACC application, an issue arose as to whether, by reason of s 123 of the Evidence Act 2008 (Vic), the AFP and CDPP could maintain a claim of legal privilege in respect of communications concerning a large number of matters, which were highly relevant to the ACC application. They included legal advice in relation to the following: to what extent examination of evidentiary holdings is necessary before the conduct of ACC examinations; the lawfulness of the dissemination of the ACC examinations of each ACC accused; the conduct of the AFP investigation; the sufficiency of the evidence against each ACC accused; whether any of the ACC accused ought be charged, and if so, when; and why it was decided to lay direct indictments against those ACC accused who had been discharged at committal.

19 The hearing of the ACC application was adjourned part-heard, while the Court of Appeal considered the matter on a case stated.[14] The Court of Appeal ultimately upheld the claim to privilege.[15]

20 Because of the extraordinary volume of documents involved in this case, the documentary evidence relied upon was largely contained in an electronic court book. Unfortunately, due to the very limited availability of criminal court rooms that had electronic facilities, and were large enough to fit so many parties, the hearing of the applications had to be split into several large blocks of time, even after the case stated had been decided.

21 In some of the cases that have considered applications similar to the ACC application, appeal courts have been critical of the adequacy of the applicants' evidence. That seems to have led to the calling of very extensive oral and documentary evidence in relation to the ACC application. The oral evidence on the ACC application ended up occupying around 30 days. As well as making oral submissions, the parties provided lengthy written submissions on the facts and the law for all three applications, totalling almost 1,000 pages. The significance of the size of the task will be discussed later in these reasons.

22 Initially, the CDPP filed and served witness statements or affidavits from more than a dozen CDPP lawyers and AFP officers, who the ACC accused said they wished to cross-examine. A few key officers (such as the Senior Investigating Officer, Rohan Pike, his deputy, Peta Maddigan, and the principal informant, Peter Kocalidis) were in the witness box for a number of days. As the hearing proceeded, some additional AFP and CDPP witnesses were called to give evidence.

23 In addition to Pike, Maddigan and Kocalidis, the following AFP federal agents gave evidence: Timothy Clinnick, Kenneth McDermott, Grant Smith, Dean Portway, Murat Bozkurt, Matthew Ustinov, Michael Lawler, Nathan Renwick and James Rowe. Evidence was also given by Tamara Bartlett, an AFP criminal intelligence analyst.[16]

24 The following current or former solicitors at the CDPP gave oral evidence: David Sewell, Samantha Holmes, John Barrington, and Shane Kirne. James McConnochie, an IT Security Advisor, also gave evidence for the CDPP.

25 The following witnesses currently or formerly with the ACC gave oral evidence: Geoffrey (known as Tim) Sage, the examiner for each of the examinations of the ACC accused; John Dines, Head of the Determination under which Brady and Leckenby were examined; Catherine (known as Kate) Deakin, Head of the Determination under which Wong and Hutchinson were examined; Christopher Bonnici, an in-house lawyer who acted as counsel assisting at each of the examinations; Julian Ayres, an in-house lawyer involved in preparing legal submissions in support of summonses; and Nicholas Cohen, an intelligence analyst.

26 A discrete electronic court book was prepared for the ACC application, comprising all paper documents that were individually tendered and given an exhibit number, as well as all electronic documents that were shown to witnesses.

27 No additional oral evidence was called for the other applications. Instead, the parties relied upon all oral and documentary evidence from the ACC application, together with an additional electronic court book that contained extensive transcripts and exhibits from the committals.

28 The accused did not challenge the honesty or reliability of most of the witnesses. However, challenges were made to the evidence of Pike, Sage and Bonnici.

29 Pike was a very unsatisfactory witness. For the most part, I would describe him as being evasive, rather than outright lying. Pike spent much of his time in the witness box advocating, rather than giving evidence. Clearly an intelligent and experienced senior police officer, he used a number of techniques to try to avoid giving answers that he thought would harm the prosecution case.

30 Pike frequently made long-winded, self-serving, non-responsive speeches, despite my repeated directions that he should just answer the question asked of him. He generally seemed to be doing that in anticipation of where he thought the current question was going to lead, if he answered it in a particular way.

31 On numerous occasions, he answered "I do not remember" or "I do not recall", even when the question was about a matter that one might reasonably have thought he would have had some memory. In giving that answer, he cut off many lines of questioning that seemed potentially problematic for the AFP. Then, when he was being cross-examined by Brady's counsel on the third day of his evidence, he initially answered "I can't recall", to a question about who had telephoned him on a critical matter, before immediately qualifying that by saying "It was almost certainly - I said I can't recall because I am not 100% but I am 99% certain it would be Peta Maddigan." Hutchinson's counsel put to him that it was pretty misleading to say "I can't recall", when what he in fact meant was "I'm not 100% certain." It was suggested to him that a more honest answer would have been "I'm 99% sure it was Peta Maddigan and I'm not absolutely sure", but he rejected that suggestion. Given that, over the preceding day alone, he had answered about 50 questions with either "I don't recall" or "I don't remember", the extent to which he had thereby cut off potentially problematic lines of questioning became apparent.

32 Up until closing addresses, it was a central part of the ACC accused's case that the ACC had no power to compulsorily examine somebody who was a suspect. Much time was spent cross-examining witnesses about whether or not the ACC accused were regarded as suspects at the relevant time. Pike was well aware of how critical this issue was to the ACC accused's case, and seemed determined to do all he could to avoid making any concession that he perceived might harm the prosecution case. There were some matters about which Pike was prepared to make concessions, but they were clearly matters that he perceived assisted the prosecution case.

33 Pike regularly debated the meaning of questions or terms, which I did not regard as ambiguous or requiring debate.

34 That Pike was in the witness box for a total period of some 5 days was due primarily to the way in which he gave his evidence.

35 It was not suggested that the examiner, Sage, was dishonest, but his reliability was (for very good reason) challenged. He clearly had little independent recollection of the particular examinations, or the circumstances surrounding them. That is hardly surprising, given that he conducts hundreds of examinations every year, and was being asked about examinations held some five years before he gave evidence. His evidence was often vague and lacking in detail. He frequently admitted that he was not sure what had happened. On some occasions, he would change his evidence when shown a document that suggested a contrary answer. On other occasions, he would fall back on answering questions by reference to what he said his practice at the time would have been. I have no doubt that some of his evidence was no more than a reconstruction of what he thought would or should have happened.

36 Although I have reservations about the reliability of some aspects of Sage's evidence, and will be making strong criticisms of his conduct as an examiner, I do not doubt his honesty as a witness.

37 Bonnici displayed a defensive attitude and an unwillingness to make concessions that he perceived would harm the ACC or Sage. Like Pike, his answers tended to be long-winded and, at times, involved an element of advocacy. His evidence was frequently inconsistent with the contemporaneous documents, or the recollections of other witnesses, including other ACC staff. On occasions, I regarded his answers as implausible, or even disingenuous.

38 In fact, in relation to both of Pike and Bonnici, it has not been necessary for me to make specific findings of dishonesty, in order to come to my conclusions. Accordingly, I am not going to spend time considering in great detail the various suggested examples of dishonesty.

39 The ACC accused, Brady, Hutchinson, Leckenby and Wong, were compulsorily examined before the ACC prior to being charged. Numerous AFP officers who were investigating the alleged offences were present at their ACC examinations, and/or had access to the audio recordings, transcripts and summaries of those examinations. CDPP staff were involved in the AFP investigation, even before the examinations occurred, and sought and obtained access to similar examination materials as the AFP. AFP officers met with CDPP officers and prosecuting counsel during the AFP investigation, for the purpose of briefings and advice. Prosecuting counsel provided advice to the CDPP (which was provided to the ACC) before the examinations of the ACC accused; counsel also provided advice thereafter, including the advice to lay specific charges against the ACC accused.

40 The ACC accused say that their examinations were conducted unlawfully, and for the purposes of the AFP. They urge the court to find that the examiner exercised his extraordinary examination powers with a reckless disregard for his legal obligations, for their rights, and for the ACC's own procedures. They argue that the ACC was little more than a "hearing room for hire" for the AFP.

(a) The two determinations relied upon as authorising their examinations were not valid determinations;

(b) The examinations were unlawful, in that they were not conducted for the purposes of a special ACC operation/investigation;

(c) The examinations were unlawful, because they were committed for one or more improper purposes;

(d) The examination material was unlawfully published to those investigating and prosecuting the ACC accused, and was used by them;

(e) By reason of those various acts of illegality, the ACC accused have singularly and collectively suffered forensic disadvantage in the conduct of their defences, and the prosecution has obtained an unfair forensic advantage, such that a fair trial cannot be held;

(f) It is not possible to "unscramble the egg" so as to remove the forensic advantage unlawfully obtained by the prosecution, or to ameliorate the forensic disadvantage suffered by the ACC accused;

(g) This case is different from other cases of illegality in the conduct and use of ACC examinations and examination material, where stays have been refused. This case involves:

(i) The deliberate coercive questioning of suspects, because they had exercised their rights to decline a cautioned police interview;

(ii) The use of the examination power for the very purpose of achieving the forensic disadvantage to the ACC accused, and advantage to the prosecution, in foreseen future legal proceedings; and

(iii) The use of the examination power where officers of the executive deliberately engineered the situation that the ACC accused now face in this proceeding: a conspiracy charge where acts and utterances of others are sought to be led against them, and where not only they, but also their alleged co-conspirators, have had their forensic choices confined.

42 The ACC accused say that the unlawfulness cannot be cured or retracted, and has stained the entire trial process, to such an extent that they cannot have a fair trial. They also argue that the executive should not be permitted to benefit from its deliberate unlawful conduct, which was designed to result in that unfair trial. They say a permanent stay is justified in the exceptional circumstances of this case.

43 In general terms, the CDPP and ACC deny that they or the AFP have engaged in any illegality or impropriety. They say that there was nothing wrong with investigating police officers being present at the examinations, or having access to examination material. The CDPP has informed the court that counsel and the CDPP officers who were involved in the ACC examinations, or have received examination material, will not be involved in the prosecution of the current charges.

44 The CDPP also says that the ACC accused have not demonstrated any forensic disadvantage, which cannot be remedied by the appointment of a new prosecution team. In all the circumstances, the CDPP disputes that the ACC accused cannot have a fair trial, or that there is otherwise any basis for granting a permanent stay.

45 There is no dispute as to the general principles which apply to both the ACC application and the alternative stay application.

46 The power to stay proceedings is a discretionary power, which derives from the court's inherent power to protect the integrity of its processes, where the administration of justice so requires. It is a remedy that is invoked to prevent an abuse of process.

47 The grounds upon which a stay may be ordered include delay,[17] oppression,[18] prosecutorial misconduct,[19] destruction or loss of evidence,[20] where the court's procedures are invoked for an illegitimate purpose, or use of the court's procedures would bring the administration of justice into disrepute.[21] The possible grounds are not capable of exhaustive definition.

48 The test is whether there is "a fundamental defect which goes to the root of a trial, of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences" then the discretion to stay is enlivened, and may be exercised to prevent the accused being tried unfairly.[22]

49 A proceeding will only rarely be stayed permanently, because it is in essence a power to refuse to exercise jurisdiction. The underlying principle is that the conferral of jurisdiction imports a prima facie right in the person invoking the jurisdiction to have it exercised.[23] Thus it has been said that the power is exercisable only in "exceptional cases",[24] or "sparingly and with the utmost caution".[25]

50 The policy considerations behind limiting the exercise of the power to exceptional cases were explained by Brennan J in Jago v District Court (NSW) ("Jago"). He noted that if permanent stay orders were to become commonplace "it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion in the public mind".[26]

51 The power cannot be exercised where a court merely forms the view that the prosecution should not have been commenced or continued. The initiation and continuation of the prosecution is a matter for the executive. A court will not interfere in a decision to charge an accused person in a particular way "save to prevent an abuse of process".[27] The focus of the power is upon the process or the proceeding, and not upon the general merits of the case.

52 In determining whether an application for a stay for abuse of process should succeed, a court will have regard to whether a fair trial can nevertheless be held. In particular a court will consider the capacity of the trial judge to rule on the admissibility of evidence and to give appropriate directions to the jury, to ensure that all the relevant factual issues arising from an alleged unfairness are placed before the jury sufficient to cure the unfairness that would otherwise arise.[28]

53 Nonetheless, there is a fundamental right of an accused not to be tried unfairly. Where the defect is so serious that the continuation of a criminal trial will culminate in an unfair trial regardless of any efforts by the trial judge, then the court's processes will have been misused, such as to constitute an abuse of process, because the public interest in holding a trial does not warrant the holding of an unfair trial.[29]

54 There is a strong public interest in the prosecution of serious offences and the conviction of offenders. There is also a strong public interest in ensuring that judicial processes are not abused, and that the trials of accused persons are fair to them, that innocent persons are not convicted, and that public confidence in the administration of justice is maintained.[30]

55 The application of the test involves an evaluation of the seriousness of the defect that remains after any prospect of remedy has been discounted. It also involves a balancing exercise directed at determining where the interests of justice lie and, if appropriate, exercising the power to prevent injustice or to protect against unfairness. There can be no precision as to what factors must be weighed in the balance; they must necessarily vary according to the facts of the particular case.

56 There is no dispute that the accused carry the burden of establishing that any stay should be granted, and the evidentiary basis for it. Any facts in dispute need to be proved on the balance of probabilities.

Operations and investigations under the ACC Act

57 Before considering the ACC accused's specific criticisms of what occurred, it is convenient to consider the relevant provisions of the ACC Act as they were during the relevant period, and the way in which the authorities have construed them.

58 The ACC was established by the ACC Act, and replaced the National Crime Authority ("NCA"). Its functions include collecting, analysing and disseminating criminal information and intelligence, undertaking intelligence operations and investigating matters relating to federally relevant criminal activity.[31]

59 In performing its functions under the ACC Act, the ACC is required, as far as practicable, to work in co-operation with other law enforcement agencies,[32] and may co-ordinate its activities with similar bodies overseas.[33] The definition of "law enforcement agency" includes the AFP, and any other authority or person responsible for the enforcement of State or Commonwealth laws.[34]

60 The ACC consists of the CEO, the examiners, and members of staff of the ACC.[35] Who falls within the definition of "member of staff of the ACC" is an issue that arises, and will be considered later in these reasons.

61 Although established under the ACC Act,[36] the ACC board is not part of the ACC. It is comprised of the heads of the major federal and State investigative bodies in Australia, including the Commissioner of the AFP. The ACC board determines national intelligence priorities, and provides strategic direction to the ACC.[37] It disseminates strategic criminal intelligence assessments to domestic and foreign law enforcement agencies.[38] It also has certain powers to authorise intelligence operations and investigations, which will be considered shortly.

62 By a rather convoluted route through the relevant dictionary terms in s 4(1), it becomes apparent that the ACC Act is primarily concerned with the investigation of serious and organised crime. "Serious and organised crime" means an offence that:

(a) Involves two or more offenders and substantial planning and organisation; and

(b) Involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and

(c) Is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and

(d) Is a "serious offence",[39] or any one of a long list of offences that includes, among other things, money laundering.

63 Bribery of foreign officials is not mentioned anywhere in the ACC Act.

64 The ACC can undertake intelligence operations and conduct investigations into "federally relevant criminal activity". The ACC board may determine that an intelligence operation or investigation is a "special" one.[40] Different powers are available to the ACC, depending on whether or not something is designated as special.

65 Before determining that an operation or investigation is special, the ACC board is required to consider the efficacy of methods of gathering information that are less intrusive than using the powers in the ACC Act.[41] A determination that an investigation or operation is "special" requires a special majority of the ACC board.[42]

66 When determining that an investigation or intelligence operation is special, the ACC board's written determination must describe "the general nature of the circumstances or allegations constituting the federally relevant criminal activity" and "set out the purpose of the operation or investigation".[43]

67 Although the ACC board may establish committees to assist it in carrying out its functions, it cannot delegate to a committee the function of determining whether an operation or investigation is a special one.[44] When the legislation was first drafted, it was proposed that board committees could make such determinations.[45] The fact that the ACC Act, as enacted, only permits the ACC board itself to make such determinations, highlights the importance of that function.

68 The ACC Act also established an Inter-Governmental Committee ("the IGC"), whose members are Ministers of the Commonwealth and States, or their delegates.[46] The functions of the IGC include monitoring the work of the ACC and the ACC board, and overseeing their strategic direction.[47]

69 As an additional level of oversight of special operations and investigations, the IGC must be informed of such determinations.[48] The IGC may require further information on the determination,[49] and may revoke the determination.[50]

70 For every special or ordinary (non-special) investigation or operation that is approved by the ACC board, the CEO nominates a Head of Investigation or Head of Operation under s 46A(2A) of the ACC Act. The position is referred to within the ACC as the Head of Determination ("HOD"). John Dines was the HOD for the determination under which the first round of examinations were held; Kate Deakin was the HOD for the later determination.

71 While a determination is on foot, the HOD identifies projects that they consider could appropriately be pursued under the determination. For each such project, the HOD prepares an application to the relevant management committee, seeking approval for the work to be undertaken. At the time of the first round of examinations, the relevant committee was called the Governance Operations Committee ("GOC"). The GOC was replaced by the Organised Crime Management Committee ("OCMC").

72 The GOC and OCMC were internal ACC management committees, set up to assist the CEO in their responsibility to manage, co-ordinate and control ACC operations and investigations. They were chaired by an Executive Director, and consisted of all HODs, State and National Managers, and other senior members of staff of the ACC. They met, on average, two to four times per month, to consider project applications, reports and other operational matters.

73 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.

74 If a project was approved by the GOC/OCMC, resources were applied, which may have included analysts, investigators, lawyers and examiners. Those people would identify how best to achieve the project aims, which may (in the case of special investigations or operations) include conducting compulsory examinations. If a potential witness for examination was identified, an application would be made to an examiner.

75 If the relevant management committee did not approve a proposed project, the project would not proceed due to a lack of resources. But just because a committee had decided to conduct a project, it did not follow that the examiner would have to exercise their powers so as to support the project. The GOC/OCMC had no status or powers under the ACC Act. In particular, the committees had no legal power to determine that there should be an examination, or that a person should be summoned.

76 The GOC approved a project called Project Agrale, which dealt with matters arising under the financial crimes determination.[51] Dines, the HOD for that determination, could not recall the precise scope of Project Agrale, or when it was set up. However, it is clear from GOC documents that the project covered a very broad range of financial crimes, including money laundering. Leckenby and Brady were examined while Project Agrale was underway.

77 The OCMC approved Project Saintly on 9 September 2010, to deal with matters arising under the money laundering determination.[52] Deakin, the HOD for that determination, said that Project Saintly was a very narrow project, specifically to address the remaining issues that had not been finalised in Project Agrale in relation to Securency. She said the project's purpose was to provide AFP Operation Rune with the examination powers that the ACC possessed, "to the extent that an examiner was prepared to approve them." Wong and Hutchinson were examined while Project Saintly was underway.

78 Both the GOC and OCMC had before them some material relating to allegations of foreign bribery involving Securency. How the foreign bribery matters first came to the attention of the ACC, and what the ACC was doing by way of investigating them at various times, will be considered later in these reasons.

79 The consequence of an operation or investigation being determined by the ACC board to be a special one is that it enlivens various coercive powers, including the power of an examiner to summons and examine a person, on oath, without the benefit of the privilege against self-incrimination.

80 If a potential examination witness is identified, ACC staff prepare an application to the examiner, which comprises a statement of facts and circumstances, legal submissions, and a draft summons. If the examiner considers it reasonable in all the circumstances to do so, they issue the summons.

81 Examiners have various statutory powers and obligations in relation to the conduct of examinations conducted for the purposes of a special determination, which will be considered shortly.

82 In deciding whether to exercise his powers, an examiner (unlike the ACC board) is not required to consider the efficacy of ordinary police methods of investigation.

83 Although examiners are part of the ACC (by reason of s 7C(2)), their independence is apparent from a number of features of the ACC Act. Examiners are appointed by the Governor-General,[53] not by the ACC board. Examiners can only be terminated by the Governor-General on specified grounds.[54] They are not members of the ACC board, and therefore have no role in deciding whether to designate an operation or investigation as special. Examiners also have the same protection and immunity in the performance of their functions and exercise of their powers as High Court justices.[55]

84 In the explanatory memorandum for the Australian Crime Commission Establishment Bill 2002 ("ACC explanatory memorandum"), the independence of ACC examiners was described as an important safeguard in the exercise of the coercive powers. While the ACC board may determine that an operation or investigation is special, which will result in the coercive powers being available for that operation or investigation, "this does not interfere with the statutory discretion of the examiner to determine how, when and why to use those powers once a determination is in place."[56]

85 None of the parties dispute the importance of an examiner exercising their powers independently. However, for reasons that will be discussed later, the ACC accused say that Sage, who examined each of them, did not properly fulfil his statutory role.

86 The provisions which apply to examinations are contained in Division 2 of Part II of the ACC Act. Those provisions have been substantially amended, since the completion of submissions in this case.[57] At the times relevant for the purposes of the ACC application, the ACC Act provided as follows.

87 Examinations could only be held for the purposes of a special ACC operation or investigation.[58]

88 Section 28 permitted an examiner to summon a person to appear at an examination to give evidence and produce specified documents or things, if the examiner is satisfied that it is "reasonable in all the circumstances to do so." Section 29 permitted an examiner to serve a notice, requiring a person to produce documents relating to a special operation/investigation, whether or not an examination is being held.

89 It was an offence[59] for a person to fail to answer a summons,[60] or to refuse to answer a question or produce a document or thing required by the summons.[61]

90 In particular, a witness could not refuse to answer a question on the ground of self-incrimination. However, if, before answering the question, the witness claimed that answering the question might tend to incriminate them or make them liable to a penalty, the following limited use immunity may be available.[62] Section 30(5) provided that:

The answer, or the document or thing, is not admissible in evidence against the person in:

(i) in the case of an answer - the falsity of the answer; or

(ii) in the case of the production of a document - the falsity of any statement contained in the document.

91 The legislation under which the NCA operated provided greater protection against self-incrimination. Under the National Crime Authority Act 1984 (Cth) ("NCA Act"), a witness could not refuse to answer a question in an examination "without reasonable excuse."[63] It was a reasonable excuse to object to answering on the grounds of self-incrimination,[64] unless the CDPP had given a written undertaking that "any answer given ... or any information, document or thing obtained as a direct or indirect consequence of the answer" would not be used in evidence in any proceedings against the witness for an offence, other than in proceedings in respect of the falsity of the evidence.[65] The CDPP was also required to state their opinion that there were special public interest grounds that required that the answers be given, and to describe the general nature of those grounds.

92 Under the ACC Act, an examiner has the general power to regulate the conduct of the examination as they think fit.[66] However, that is subject to the specific provisions contained in s 25A and elsewhere.

93 Section 25A(3) provided that an examination "must be held in private and the examiner may give directions as to the persons who may be present" during part or all of the examination.

94 Section 25A(5) provided that "a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present".

95 Sections 25A(9) to (11) appeared under a heading "confidentiality". In general terms, s 25A(9) empowered the examiner to make directions limiting the publication of examination product. Section 25A(9) provided that the examiner must give such a direction, if the failure to do so might prejudice the safety and reputation of a person or prejudice the fair trial of "a person who has been, or may be, charged with an offence". Section 25A(9) is a critically important section in this case, and is set out in full later in these reasons.

96 The CEO of the ACC could vary or revoke such a direction in writing, but could not do so if the variation or revocation "might prejudice a person's safety or reputation or prejudice the fair trial of a person who has been or may be charged with an offence."[67]

97 It was an offence for a person to make a publication in contravention of a direction given under s 25A(9).[68]

98 The concept of prejudicing a fair trial also appeared in s 29A, which dealt with the disclosure of summonses and notices. Section 29A(2) provided that an examiner issuing a summons under s 28, or a notice under s 29, must or may include a notation that disclosure of information about the summons or notice is prohibited, except in certain circumstances. The examiner must include such a notation if satisfied that failure to do so "would reasonably be expected to prejudice ... the fair trial of a person who has been or may be charged with an offence",[69] and may include such a notation if satisfied that the failure to do so "might prejudice ... the fair trial of a person who has been or may be charged with an offence".[70]

99 The requirements of s 29A were not the subject of argument in this case. However, I have referred to them as they are described (along with s 25A) as important protective features of the ACC Act, in a number of the key cases.

100 The CDPP and ACC refer to several other provisions as being relevant to the questions of confidentiality and publication of information by the ACC, namely ss 12 and 59(7) of the ACC Act.

101 Section 12(1) provided that if, in carrying out an operation or investigation, the ACC obtains evidence that would be admissible in the prosecution of a State or Commonwealth offence, the CEO must assemble the evidence and give it to the relevant Attorney-General, law enforcement agency, or prosecuting person or authority.

102 Section 59 was headed "Furnishing of reports and information". Relevantly for present purposes, s 59(7) permitted the CEO to give to any law enforcement agency:

any information that is in the ACC's possession and that is relevant to the activities of that agency or body if:

(d) it appears to the CEO to be appropriate to do so; and

(e) to do so would not be contrary to a law of the Commonwealth, a State or Territory that would otherwise apply.

103 Section 59(7) was repealed and replaced by s 59AA, with effect from 25 June 2012.[71]

104 The relationship between ss 12 and 59 on the one hand, and ss 25A and 29A on the other, has been the subject of judicial consideration in the cases discussed below.

The development of the relevant legal principles

105 The meaning of the relevant provisions in the ACC Act, and their effect on fundamental common law principles, have been the subject of considerable development over the past decade or so. Many of the key cases were only decided after the period in which the examinations of the ACC accused took place.

106 There is no dispute that when a court declares a new rule of common law, or varies an existing principle or rule, the effect is a retrospective declaring of what the common law has been since time immemorial. Accordingly, all parties accept that the state of the law as declared in later cases constitutes the correct state of the law for present and past purposes.

107 However, in assessing whether the examiner, the ACC staff and the AFP acted in deliberate or reckless disregard of the law, in any of the ways alleged by the ACC accused, it is necessary to consider what the state of the law was, or should have been, understood to be at the relevant times. As the law in this area was developing incrementally, it is convenient to begin with a rather detailed, chronological analysis of the key cases.

108 The starting point for the discussion in many of the cases is the 1982 judgment in Hammond v The Commonwealth ("Hammond**"**).[72] In Hammond, the High Court granted an injunction to restrain a royal commissioner from compelling Mr Hammond to give evidence that would have incriminated him in relation to pending criminal charges. Even though the commissioner had ordered that the evidence be taken in a confidential session, he had permitted investigating police officers to be present during the questioning.

Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow ... that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence.[73]

110 The Chief Justice said that the continuation of an inquiry into the subject matter of the charge would amount to a contempt of court.[74]

111 Brennan J granted the injunction on an even broader basis. He described it as a principle "deep-rooted in our law and history" that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged.[75]

112 Given the urgency with which the injunction application came on before the High Court, none of the judgments in Hammond contained very detailed reasoning. They have, nevertheless, been discussed in later cases.

113 In the 2004 decision of A v Boulton ("Boulton"),[76] the applicant sought judicial review of an ACC examiner's decision to require him to answer questions put to him during an examination. First, the applicant claimed that, on the true construction of the ACC Act, his common law privilege against self-incrimination still existed. Secondly, he argued that it was improper for the examiner to examine him, because it was likely that he would, in the future, be charged with offences relating to the subject matter of the examination.

114 After considering in some detail the historical background to the ACC Act, and the law in relation to the privilege against self-incrimination, Weinberg J held that s 30 of the ACC Act entirely abrogated the common law privilege by necessary implication.[77] His Honour held that the ACC Act provided some compensation to witnesses who were compelled to incriminate themselves; however, that compensation was deliberately limited to use immunity, and did not extend to derivative use immunity.[78]

115 Relying on the reasoning in Hamilton v Oades,[79] his Honour rejected the suggestion that any common law derivative use immunity survived in cases where the privilege had been abrogated by statute.[80]

116 Weinberg J held that use immunity did not arise as a matter of common law, but by statute. Because its scope was a matter of statutory construction, any extension must be justified as a matter of statutory construction.[81]

117 In relation to the applicant's second argument, Weinberg J said that it was plain that Hammond was directed towards situations where criminal proceedings were already on foot, and courts were seized of the proceedings.[82] There could never be any certainty that a person "about to be charged" would in fact be charged.[83] The cardinal principle underlying Hammond was that of contempt, and contempt is not ordinarily committed unless and until the curial process has been commenced.[84]

118 His Honour concluded that the Hammond principle was not intended to, and did not, cover cases where charges had not been laid, and the applicant was merely suspected of involvement in the commission of an offence.[85]

119 Weinberg J went on to say that even if he accepted that the Hammond principle should be extended to cover such cases, he was not persuaded that there was sufficient evidence that the applicant was "about to be charged".[86]

120 It is important to note that Weinberg J was only considering derivative use in the context of the construction of ss 30(4) and (5). It was not necessary for him to consider the sections which are so critical in this case, namely ss 25A(3) and (9), and what effect they have on permissible derivative use.

121 Weinberg J's decision was upheld on appeal to the Full Court of the Federal Court.[87]

122 In the June 2005 decision in CC v Australian Crime Commission ("CC v ACC"),[88] the applicant sought an injunction restraining the ACC from continuing his examination in relation to pending charges. In deciding to refuse the injunction, Mansfield J accepted an assurance that counsel assisting would seek orders to the following effect: that the police officer who was the informant on the charges not be permitted to attend the hearing of the examination (except on a specific topic, which was clearly unrelated to the criminal charges); and that the transcript not be made available to the informant or the prosecuting authorities.[89]

123 In the February 2009 decision in ABC v Sage,[90] Jessup J considered a similar application, in relation to a person already charged with drug offences. The original ACC summons that was served on the applicant said that he would be required to give evidence about "the unlawful manufacture, trafficking and supply of amphetamine type substances; and conspiracy to murder." The summons also said "You will not be examined in relation to charges currently before the courts." After service, the summons was amended to remove any reference to drug offences.

124 Sage, the same examiner as in the present case, excluded from the examination all persons involved in the investigation and prosecution of the drug charges. He made a s 25A(9) non-publication direction, which expressly prohibited publication of the evidence to the AFP and prosecuting authorities. In an affidavit filed in that proceeding, Sage swore that he did not intend to authorise anyone who had an involvement in the investigation or prosecution to be present during the examination, or to have access to any evidence obtained during the examination. There was also evidence that, pursuant to directions given by Sage, the ACC had placed tight administrative restrictions upon the range of persons who could have access to the transcript.

125 Before giving evidence, the applicant claimed self-incrimination under s 30(4) of the ACC Act, so his answers could not be admissible against him at the trial of the drug charges. At one point in his examination the applicant refused to answer a question, on the ground that the answer would reveal an element of his intended defence to the pending drug charges. Sage rejected the objection, and required him to answer the question. The examination was adjourned, to enable the applicant to seek judicial review of Sage's decision.

126 On the facts of the case, Jessup J was not persuaded that the continuation of the examination would present a real risk of interference with the administration of justice. In coming to that conclusion, his Honour was heavily influenced by the steps taken by Sage to prevent examination material from coming into the hands of those involved in investigating and prosecuting the applicant in relation to the pending charges, including by the terms of the s 25A(9) non-publication direction.[91]

127 Jessup J described the facts as being quite different to those in Hammond because:

In that case, police officers involved in the investigation upon which the forthcoming prosecution was based were permitted to be present during the administrative examination ... here, by contrast, not only are those police officers not present (and not permitted to be present), but [Sage] has taken the steps contemplated by the ACC Act to make it as certain as may be that those involved in the prosecution of the applicant will not come to learn of the substance of his evidence in the examination.[92]

128 In so far as Jessup J held that persons the subject of pending criminal charges could be examined by the ACC, that part of his decision must now be regarded as wrong, since the High Court's decision in X7 v Australian Crime Commission & Anor ("X7(1)").[93] But, what is of particular significance for present purposes are the orders made by Sage in that case, as well as his Honour's comments about the importance of an examiner taking steps to quarantine examination material from investigators and prosecutors.[94] As will be discussed later in these reasons, Sage took a diametrically opposed approach to both the presence of, and publication to, investigating police and prosecuting authorities, when he came to examine the ACC accused the following year.

129 In September 2009, Mansfield J published his reasons for decision in the case of OK v Australian Crime Commission ("OK(1)").[95] On 12 May 2009, the applicant was examined about some matters relating to a special investigation, which was then on foot. An interim non-publication direction was made under s 25A(9), preventing publication other than to persons who had been present at the examination, and the applicant's lawyers. The examination was adjourned for one week.

130 The following day, the applicant was arrested and charged with a drug manufacturing offence. Certain ACC officers (not necessarily the examiner) had been aware before his ACC examination that the South Australian police intended to arrest him for that drug offence. The operations manager of the Adelaide office of the ACC took steps to ensure that the police involved in the potential arrest, investigation or prosecution of the charge were excluded from the examination process. No information about the examination was made available to the South Australian police.

131 When the examination resumed on 19 May, the applicant objected to answering questions about matters related to the charge. He claimed that to compel him to answer would tend to interfere with the administration of justice, and amount to a contempt of court. The examiner directed him to answer, notwithstanding his objection. The examination was adjourned, to enable the applicant to apply to court.

132 Mansfield J ordered that the ACC, by the examiner, be restrained from asking questions directly related to matters the subject of the charge. His Honour said that the issue was not whether, by s 30, the ACC Act had abrogated the privilege against self-incrimination - it clearly had.[96] The issue was whether the applicant was entitled not to answer questions asked by the examiner, to the extent that they directly related to matters the subject of the charge, because to do so would involve a real risk that the administration of justice would be interfered with.

133 In OK(1), the ACC argued that Hammond should be read narrowly and was distinguishable from the facts in that case; alternatively, that the ACC Act had, by necessary implication, qualified the principle established in Hammond. Mansfield J rejected the ACC's submissions. He granted an injunction restraining the ACC from asking the applicant questions directly relating to the subject matter of the drug charge, until after the charge had been finally dealt with.

134 Mansfield J affirmed the importance and applicability of the Hammond principle in the following terms:

As was explained in Hammond, the public interest in the administration of justice is a central feature of our society. It is not a principle to be lightly qualified. Other provisions of the ACC Act, as noted, recognise that principle: ss 25A(9) and 29A(2). I do not consider that the obligation of a person to answer questions at an examination under s 30(2)(b), in the overall context of the ACC Act, impliedly qualifies that principle.[97]

135 His Honour said that the question of whether there was a real risk of interfering with the administration of justice was a question of fact in each case. He said that in Hammond, the risk was apparent from the fact that the investigating police officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided.[98]

136 Even though administrative steps had been taken to exclude the investigating South Australian police officers from the examination, and a non-publication direction had been made under s 25A(9), Mansfield J went on to consider the possible ways in which information from the examination may, nevertheless, be made available to prosecuting authorities. Those possible routes included a report by the CEO under s 12(1), or dissemination under s 7A.[99] His Honour also noted that there was no assurance that the current non-publication direction would continue.[100]

137 Mansfield J held that even if the applicant's answers were not admissible in evidence against him, because of the use immunity provided by s 30(5), his answers may nevertheless provide information which may adversely affect his opportunity to have a fair trial in relation to the charge, in the following ways:

(a) They may disclose details of his defence, so that the prosecutor may be able to anticipate and adduce evidence which would not otherwise have been available and procured;

(b) They may disclose other avenues of investigation to assist in proving guilt, that would not otherwise have been available to the prosecution;

(c) They may disclose a source of evidence that could contradict the foreshadowed defence; or

(d) They may disclose material, or lead to the identification of material, to cross-examine the applicant, if he gave evidence.[101]

138 On 2 June 2010, Mansfield J's decision was overturned by a majority decision of the Full Court of the Federal Court in Australian Crime Commission v OK ("OK(2)").[102] However, at the time of the examinations of Brady and Leckenby, in April 2010, OK(1) represented the state of the law.

139 In their joint majority reasons in OK(2), Emmett and Jacobson JJ said that obtaining evidence under a statutory power, for the purpose of assisting a party in pending litigation, does not necessarily constitute an interference with the procedures of the courts. To constitute contempt, the party must exercise the power in a way that actually interferes with the course of justice.[103] Furthermore, to succeed in obtaining an injunction on the ground that the further examination of a person charged with an offence would constitute contempt of court, it is necessary to establish that there is a real risk, as opposed to a remote possibility, that justice would be interfered with, if the examination continued with questions about the alleged offence.[104]

140 The majority regarded Hammond as distinguishable, because of the presence in the ACC Act of s 25A. They said that, under the ACC Act, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness. Properly construed, the ACC Act permits an examination to continue on a subject matter directly related to a pending charge, so long as the protective prohibitions contemplated by ss 25A(3) and (9) have been put in place.[105] The terms of s 25A expressly contemplate that the examiner must give a non-publication 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.[106]

141 As far as other possible dissemination of examination material was concerned, the majority said that a direction given under s 25A(9) overrides the statutory obligations imposed by ss 12 or 59 on the ACC, the CEO or the ACC board, to assemble and give evidence, or disseminate and furnish information and reports. Those persons would be able to disseminate only if they were satisfied, on sufficient evidence, that appropriate safeguards were in place to ensure that the relevant investigating and prosecuting teams not be given access to the information.[107]

142 Spender J dissented, holding that Mansfield J was right to restrain the continued examination of the witness, in order to maintain the integrity of the administration of justice. His Honour held that just because steps can be taken to ensure that a prosecutor or an investigator of a criminal offence does not become aware of the answers given by the witness in the examination, that does not mean that there is no interference with the administration of justice. Applying the Hammond principle, it is the inquisition by the executive of a witness, who is subject to compulsion to answer questions, which constitutes the interference with the administration of justice.[108] For Spender J, it did not matter whether the information provided by the person could be quarantined from investigating and prosecuting authorities.[109]

143 In so far as the majority held that the ACC Act permits the examination of a person in relation to the subject matter of a pending charge, that decision must be regarded as wrong since the decision in X7(1). However, OK(2) was the most current appellate authority at the time of the examinations of Wong and Hutchinson. Importantly for this case, all of the judges in OK(1) and OK(2) spoke of the fundamental role played by ss 25A(3) and (9), in protecting a witness from possible prejudice to a fair trial. The majority had also said that s 25A(9) overrides the statutory reporting obligations imposed by ss 12 or 59.

144 The law continued to develop after the last examinations of the ACC accused in November 2010. Dissemination of examination material to the AFP and CDPP took place at various dates up until late 2012.

145 In December 2011, in R v CB, MP v R ("CB"),[110] the New South Wales Court of Criminal Appeal considered whether to stay criminal proceedings against persons who were examined by the ACC, after they had been charged. As McClellan CJ at CL (with whom Buddin and Johnson JJ agreed) observed, the debate in previous authorities concerning the ACC Act had concerned whether or not the examination should be restrained, not whether the criminal proceedings should be permanently stayed.[111]

146 Following the majority decision in OK(2), the court held that there was nothing wrong with an accused person being examined in relation to matters relevant to pending charges, "provided the information was effectively protected as the [ACC] acknowledged it should be".[112] Even if the appellant was asked questions which would require him to disclose his defence, that would not justify a stay "unless it could be shown that either the relevant information has been, or there was a real risk that it would be, communicated to the prosecution."[113]

147 In CB, the appellant was examined in September 2009 about matters relevant to pending criminal charges. In the summons, the examiner informed the appellant that persons involved in the investigation of the criminal charges would not be permitted to attend, and a non-publication direction would be made to prevent information being published to investigators and the CDPP. Unlike in the present case, such a non-publication order was duly made.

148 However, Mohammad Hussein, an AFP officer who was seconded to the ACC, was present during the appellant's examination and took notes. That was not of concern to the appeal court, for two reasons. First, (unlike in the present case) Hussein was not an investigator who was involved in the prosecution of the charges,[114] and there was no professional reason for him to breach his secrecy obligations. Secondly, without having seen a transcript of the examination, the court could not conclude that anything was said in the examination that would be of assistance to the prosecution; accordingly, it could not conclude that the appellant could not receive a fair trial.[115]

149 Given those findings of fact, it is not surprising that the Court of Criminal Appeal concluded that there was no justification for a permanent stay in that case.[116]

150 The court in CB also reaffirmed the principles enunciated by the majority in OK(2), about the duties and rights of disclosure in ss 12(1) and 59(7) being subservient to the protective provisions in ss 25A(9) and 29A(2).[117] Those two decisions represented the state of the law, in terms of the relationship between those provisions, during the period when most of the dissemination to the AFP and CDPP in fact occurred.

151 The August 2012 decision in R v Seller, R v McCarthy ("Seller(1)"),[118] is of some importance in this case, particularly in relation to the issues of dissemination and use of examination material by the CDPP.

152 In 2004, the ACC and Australian Taxation Office began "Operation Wickenby", a joint special investigation into suspected tax fraud and money laundering. As part of Operation Wickenby, in 2005, the ACC began an investigation into the activities of Seller and McCarthy, which lasted for some years. The accused were compulsorily examined on a number of occasions by an ACC examiner, before being charged, but at a time when charges were clearly in contemplation. The examinations related to factual matters that were central to the charges and the accused's defences.

153 The ACC provided various examination transcripts and briefing papers to the CDPP. Garling J found that a number of CDPP officers had read the transcripts. However, he accepted that the current CDPP case officer and counsel had not read them.

154 Garling J found that the only basis for providing the transcripts and other material to the CDPP was to enable their derivative or indirect usage at trial. That was wrong:

(a) In relation to some of the material, because it was provided in breach of non-publication directions; and

(b) In relation to other material, because the non-publication directions that permitted publication to "any prosecuting authority ... for any matter including a prosecution ... arising from this investigation" were not authorised by the ACC Act, or by cases such as OK(2) and CB, given that charges were clearly in contemplation at the time of the examinations.[119]

155 During the relevant period, Quincy Tang, an ATO officer, was seconded to the ACC in relation to Operation Wickenby. He helped prepare some of the briefing papers for the examinations, attended a large number of the hearings in relation to Seller and McCarthy, and had access to all of their transcripts. His role at the time was to provide financial analysis for the ACC. After he finished his secondment, he returned to the ATO.

156 Tang subsequently examined various accounting and banking records, and prepared four witness statements. His statements did not list as source documents any of the ACC transcripts, nor any of the documents shown to the accused in their examinations. Nevertheless, Garling J was satisfied that Tang could not have put what he had learned from the examinations completely out of his mind, when preparing the statements. His Honour found that Tang's knowledge of the examination material had contributed in a significant, although indirect, way to his evidence:

By way of analogy, a person who is required to piece together a jigsaw puzzle, does so entirely by the process of sorting the pieces, and then fitting them together. However, even if the person has, albeit for a brief period, had the benefit of seeing the entire finished picture of the jigsaw puzzle, the task of identifying the various pieces of the jigsaw and then fitting them together, is much easier, and is much more readily achieved even if the complete picture is no longer in front of them.[120]

157 Garling J described Tang as one of the principal investigators into the relevant schemes, and said his evidence would form a central and significant part of the evidence at any trial against the accused.

158 His Honour ordered the permanent stay of the criminal charges. He held that the conduct of the ACC and the CDPP had deprived the accused of the protection which the law ensured, and that any trial would not be fair, or in accordance with the adversarial process.

159 This appears to be the first case in which a court had to consider the situation of a person actively involved in the investigation attending an examination, and having access to examination material.

160 In March 2013, Garling J's decision was overturned by the New South Wales Court of Criminal Appeal.[121] All dissemination of the ACC accused's materials had occurred prior to the decision in Seller(2).

161 In Seller(2), Bathurst CJ (with whom McClellan CJ at CL and Rothman J agreed) held that the mere fact that dissemination took place in contravention of a non-publication direction, or in circumstances where such a direction should have been given, does not automatically entitle the accused to a stay.[122] There was no evidence to justify the conclusion that the trial would be unfair, as a result of the delivery of the transcripts to CDPP, or the role played by Tang.[123] Therefore the test for the grant of a permanent stay was not satisfied.

162 As far as the transcripts were concerned, the current case officer and counsel had not read the transcripts, or discussed them with anyone at the CDPP who had done so. There was also no evidence to suggest that the CDPP would make any future use of the transcripts.[124]

163 As far as Tang was concerned, even if it were accepted that he had derived some form of improper advantage from hearing the examination material and seeing the transcripts, that would not justify a permanent stay. At most it would lead to the exclusion of Tang's evidence, which would be an issue for the trial judge to consider.[125]

164 The appeal court found that although on the facts there could be prejudice to the fair trial of the accused, there was no evidence of any actual prejudice.

165 The court set out the following principles, in relation to how a court may exercise its discretion to stay a trial, where there has been an ACC examination of the accused:

(a) Even though no attempt has been made to list exhaustively the attributes of a fair trial, nonetheless, the right to a fair trial is ingrained in the legal system in Australia.[126] What constitutes prejudice to a fair trial for the purposes of s 25A is not capable of precise definition;[127]

(b) Indirect or derivative use of material compulsorily obtained was not necessarily sufficient to constitute a relevant alteration or abridgment of the accusatory system.[128] The question of whether it was sufficient raised questions of fact and degree;[129]

(c) It is impossible to state generally the nature and type of dissemination which might prejudice a fair trial. It will depend in all cases on the nature of the material to be disseminated, the function of the person or body to whom the material is to be disseminated, and in some cases the timing of the dissemination;[130]

(d) However, if the examination material discloses defences or explanations of transactions by the accused (which they may raise at trial), and possibly evidence or information which would tend to show that documents or transactions apparently regular on their face in fact tend to support the proposed charges, that may not be allowed.[131] That does not mean that in all cases where information relating to a defence is furnished to prosecutorial authorities, a stay would be granted;[132] and

(e) Section 25A does not prohibit all derivative use of the material. For example, a fair trial generally will not be prejudiced by the use of information obtained during the course of an examination in order to obtain admissible evidence (for example, to locate bank accounts).[133]

166 A few months after the decision in Seller(2), in June 2013, the High Court delivered judgment in X7(1). After charges had been laid against him in November 2010, the accused was summoned before the ACC. The examiner used the powers in ss 25A(3) and (9) to ensure that no persons involved in the investigation or prosecution could attend the examination or receive examination material.

167 In answer to a stated case, the majority held that the ACC Act does not authorise an ACC examiner to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence.

168 In that case, the ACC had argued that there could be no contempt, and no prejudice to the fairness of the trial of such an accused person, because of the existence of s 30(5) (preventing the direct use of answers), and s 25A(9) (preventing the indirect use of answers, depending on the terms of any direction).

169 In their joint judgment, Hayne and Bell JJ (with whom Kiefel J agreed), rejected that submission and held that:

Permitting the executive to ask, and requiring an accused person to answer, questions about the subject matter of a pending charge would alter the process of criminal justice to a marked degree, whether or not the answers given by the accused are admissible at trial or kept secret from those investigating or prosecuting the pending charge.

Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution case, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.[134]

170 In considering the possible forensic disadvantage to an accused, they observed:

Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, 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 the trial. The accused person would have to decide the course to be followed in light of the 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.[135]

171 The majority held that to construe the ACC Act as the ACC contended would be to alter to a marked degree the accusatorial nature of the criminal justice system.[136]

172 Kiefel J observed that the accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial inquiries and investigations.[137] Hayne and Bell JJ agreed that the notion of an accused person's "right to silence" encompasses more than the rights the accused has at trial:

It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of trial.[138]

173 In relation to a person accused or suspected of having committed an indictable Commonwealth offence, Hayne and Bell JJ noted that that right to stay silent in response to the questions of investigating officials was reflected in Pt IC of the Crimes Act 1914 (Cth) ("the Crimes Act").[139]

174 Most of the discussion in X7(1) concerned the position of a person who had been charged before their compulsory examination. However, the majority noted that ss 25A(9) and 29A(2) had "ample work to do in respect of the examination of persons who may be suspected of wrong-doing but who, before examination, have not been charged with any offence."[140]

175 In their joint dissent, French CJ and Crennan J disagreed with the majority in their construction of the ACC Act. They held that the ACC Act raised the public interest in the continuing investigation of serious and organised crime above the private interest in claiming the privilege against self-incrimination. They said that the interest of a person subject to examination under the ACC Act being tried fairly was protected by the prohibition on the direct use of answers given, or documents or things produced (ss 30(4) and (5)), and by the provisions safeguarding the fair trial (ss 25A(3), (9) and (11)). In relation to the latter provisions, they noted that:

[W]hile the examination provisions contain no express statutory prohibition on derivative use of material obtained during an examination, s 25A empowers and requires the examiner to make directions safeguarding the fair trial of a person compulsorily examined.[141]

176 Their Honours said that those safeguards "clearly and unambiguously apply in relation to a pending (or a potential) trial".[142]

177 French CJ and Crennan J referred to the observations of Mason CJ in Hamilton v Oades, that immunity from derivative use tends to be ineffective by reason of the problem of proving that other evidence is derivative. The minority said that the problem had been addressed in the ACC Act by the protective provisions in ss 25A(3), (9) and (11), and ss 30(4) and (5).[143] They said:

[T]he content of a "fair trial" referred to in s 25A(9) and (11) must be informed by the fundamental principle that the onus of proof rests on the prosecution, whom the accused is not required to assist, and by the rule that an accused is not compellable at his or her trial. Section 25A(9) (and s 25A(11)) can protect a person compulsorily examined against both direct use (also the subject matter of the statutory use immunity under s 30(4) and (5)), and indirect use, at trial of material obtained in a compulsory examination, by a direction restricting publication, of such material. A direction under s 25A(9) must be made if the failure to do so "might" prejudice a person's fair trial.

Similarly, s 25A(3) enables an examiner to protect the person examined against direct or indirect use of the material obtained, by controlling who may be present at the examination.

These safeguards are capable of preventing a compulsory examination from occasioning an unfair burden on the examinee when defending criminal charges.[144]

178 They observed that whether a direction under s 25A(9) would be sufficient to preclude the prosecution from obtaining an unfair forensic advantage in a trial could not be stated in any categorical or exhaustive fashion. In considering the sufficiency of any such direction, it would be necessary to consider "the nature of the self-incriminating evidence as well as the role of persons who had access to it, together with the use which such persons might make of it".[145]

179 Although the majority and minority in X7(1) differed on whether persons already charged could be examined under the ACC Act, that is not relevant to the case of the ACC accused (as they had not been charged at the time of their examinations). The observations of the minority, about the important protective roles played by ss 25A(3), (9) and (11), are consistent with the views of the majority about the role played by those provisions in respect of persons (like the ACC accused) who may be charged.

180 Finally, French CJ and Crennan J noted that a "specific, protective direction" made under s 25A(9) overrides the general obligations imposed on the ACC board or the CEO under ss 12 and 59, to assemble evidence and disseminate and furnish information and reports to nominated persons, bodies or agencies.[146]

181 Only three months after the decision in X7(1), in October 2013, the High Court came to an apparently contrary conclusion in Lee v New South Wales Crime Commission ("Lee(1)").[147]

182 In that case, the NSW Crime Commission ("NSWCC") applied for orders seeking the compulsory examination of the two appellants, and a third party, in relation to the affairs of one of the appellants. The application was made under s 31D of the Criminal Assets Recovery Act 1990 (NSW) ("the CAR Act"). By that time, the appellants had been charged with various offences, and were awaiting trial.

183 The judge at first instance refused to order the examinations. On appeal, a specially constituted bench of five overturned that decision, and ordered that the first appellant attend for examination before a Registrar of the Supreme Court of NSW.[148]

184 Given the divergent views expressed in X7(1), it is perhaps not surprising that special leave to appeal was granted. When the appeal came on for hearing, the three judges who had been in the majority in X7(1) found themselves in the minority on a bench of seven.

185 Although the majority judges (French CJ, Crennan, Gageler and Keane JJ) agreed that the CAR Act did permit the compulsory examination of a person who had been charged, about the subject matter of the charges, there were some significant differences in the reasoning in their three separate judgments.

186 French CJ distinguished X7(1), on the basis of differences between the ACC Act and the CAR Act. The fact that an examination under the CAR Act would take place before a judicial officer (rather than a member of the executive) was an important distinguishing feature to his Honour; that fact was also relevant to Crennan J's decision. Both French CJ and Crennan J were also influenced by their perception of the policy behind the CAR Act, in relation to serious criminal activities.

187 In their joint reasons, Gageler and Keane JJ said that Hammond is not authority for the proposition that a real risk to the administration of justice necessarily, or presumptively, arises by reason of the exercise of a statutory power to compel the examination on oath of a person about the subject matter of pending charges;[149] whether or not there is a real risk must be considered on the facts of each case.

188 Their Honours rejected as "unsound in principle" the proposition that any deprivation of an accused person of a forensic advantage necessarily involves an interference with the administration of justice, or the right of an accused person to a fair trial.[150] Although they acknowledged that the deprivation of a legitimate forensic choice may be one of the ways in which there may in fact be interference with the due course of justice, they commented that:

[W]e are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination. The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt.[151]

189 In making those obiter observations about forensic advantages and choices, Gageler and Keane JJ went considerably further than French CJ and Crennan J, and were distinctly in the minority. Those observations have not found favour in later cases, either.

190 Hayne and Bell JJ (in dissent) rejected the suggestion that the entitlement of a person accused of criminal wrongdoing to remain silent was a mere forensic advantage, rather than a fundamental common law right, or that it would permit or encourage the pursuit of falsehood.[152] Hayne J observed that:

The asking of questions and the compelling of answers about the pending charge inevitably interfere with the conduct of an accusatorial trial and embarrass the defence of the accused. The answers the accused has been compelled to give to the questions asked deprive the accused of forensic choices that otherwise would be legitimately open at trial to test the case which the prosecution advances. That is, the asking of questions about the pending charge and the compelling of answers to those questions work a fundamental alteration to the accusatorial process of criminal justice.[153]

191 Kiefel J, the other member of the minority, found that there could be little doubt that the evidence obtained at the examination would be made available to investigating and prosecuting authorities:

As the cases explain, there are other effects upon an accused person's defence, and upon the conduct of his or her trial, which may follow as a result of an examination. There is a real risk, if not a likelihood, that aspects of the appellants' trials will differ from a criminal trial as it is ordinarily conducted, especially in its accusatorial aspects. Rather than the prosecution being required to prove its case without assistance from the appellants, the examination is likely to result in the prosecution being advantaged in the conduct of its case and the appellants prejudiced.[154]

192 The following year, the same two appellants came before the High Court again, in Lee v R ("Lee(2)").[155] Somewhat confusingly, Lee(2) involved a compulsory examination that had occurred in late 2009, before the events in Lee(1).

193 In Lee(2), the appellants were examined by the NSWCC under the (now repealed) New South Wales Crime Commission Act 1985 (NSW) ("NSWCC Act"), prior to being charged. The examiner made a non-publication direction under s 13(9) of the NSWCC Act (the equivalent to s 25A(9) of the ACC Act), which prohibited the publication of evidence given at the examinations.[156] In breach of the non-publication direction, the NSWCC published transcripts of the appellants' examinations to the police and the DPP, and provided documents produced by one of the appellants to potential witnesses, the police and the DPP.

194 The focus of the appeals to the High Court was on the publication of the transcripts of the appellants' evidence to the DPP.[157] That had come about because a DPP solicitor had asked the charging police officer if she could see the transcripts; she wanted to see if they would disclose any possible defence to the drug charges, upon which the appellants might try to rely. The Commissioner approved their release, without turning his mind either to the requirements of s 13(9), or the non-publication direction that had in fact been made. The Crown conceded that the publication was unlawful.

195 During a pre-trial hearing, the prosecutor disclosed that the Crown had seen the examination material, noting that although it was not admissible "I suppose it gives us a bit of an idea where they might be heading." Although one of the appellant's counsel complained about the prosecution having been provided with the transcripts, no relief was sought at that time. The appellants were convicted at trial on various drug and firearms charges.

196 Shortly before the hearing of their appeals against conviction, the appellants learned of the circumstances in which the transcript had come to be published, namely, that it had occurred at the request of the DPP, in order to ascertain what defences they might raise.

197 Before the NSW Court of Criminal Appeal, the Crown conceded that the dissemination to the DPP was unlawful, given the protective purpose of s 13(9) in relation to a fair trial. The Crown also conceded that there had been a miscarriage of justice, and that an order for a retrial of the drug charges would be appropriate. It was not conceded that a verdict of acquittal or a permanent stay would be appropriate. The Court of Criminal Appeal expressed reservations about accepting the concession that a miscarriage of justice had occurred, which resulted in a partial withdrawing of the concession.[158]

198 In their joint judgment, the High Court (French CJ, Crennan, Kiefel, Bell and Keane JJ) held that the appellant's trial had miscarried in a fundamental respect. Further, because the prosecution case connected all of the charges, all the convictions should be quashed and a retrial ordered.

199 The court held that the decision to publish the transcript to the prosecution, directly to the DPP officer and indirectly through the police (who were subject to a statutory duty to disclose the information to the DPP without regard to the protective purpose of s 13(9)), was not authorised by the NSWCC Act.[159] The publication to the DPP was for a patently improper purpose, namely ascertaining the appellants' defences.

200 Section 13(9) obliged the NSWCC to make a direction prohibiting the publication of evidence, if not to do so might prejudice a person's fair trial. Whether there was a risk of prejudice was a question to be determined objectively. The High Court said that in considering that question, the NSWCC "would be expected to adopt a careful approach reflecting the protective purpose for which the duty to make such a direction was imposed on it."[160] A decision, inconsistent with that duty or purpose, to publish transcripts or documents which were, or should have been, the subject of such a direction, would be a decision beyond power.

201 Nonetheless, the court held that the critical question was not whether the publication was unlawful and wrongful, but "whether, as a result of the prosecution being armed with the appellants' evidence, there has been a miscarriage of justice in the eyes of the law".[161]

202 The principal reason given by the Court of Criminal Appeal for dismissing the appeals was that there had been no "practical unfairness", because nothing in the transcripts was considered to be relevant to the trial as it was conducted. The High Court categorically rejected that approach:

These appeals do not fall to be decided by reference to whether there can be shown to be some "practical unfairness" in the conduct of the appellant's defence affecting the result of the trial. This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice. The appellants' trial was altered in a fundamental respect by the prosecution having the appellants' evidence before the commission in its possession.[162]

203 The High Court also said it was not to the point that the defence lawyers had not objected to the use of the transcripts (after making their initial complaint), or sought a stay of proceedings. The prosecution has a responsibility for making sure a case is presented properly, and with fairness to the accused. The prosecution should have alerted the trial judge, who could have ordered a temporary stay while another prosecutor and DPP personnel, not privy to the evidence, were engaged.[163]

204 The High Court also noted that the making of a direction under s 13(9) was not the first, or only occasion, on which the NSWCC was required to consider the possible effects of a compulsory examination on a person's trial. Section 13(5) (the equivalent to s 25A(3) of the ACC Act) required that the NSWCC determine who should (and, it would follow, who should not) be present at the private hearing. It could set at nought the protection afforded by s 13(9), if persons associated with the possible prosecution of the person giving evidence were present.[164]

205 The High Court ordered that the convictions be quashed and said that, for the purposes of the retrial, the prosecutor and DPP personnel should be replaced by persons who were not aware of the contents of the appellants' examination material.

206 The CDPP and ACC point out that in Lee(2) the High Court did not express any concerns about the fact that the police had access to the examination material for the purposes of the investigation. They argue that it can be safely assumed that had that matter been of concern, the High Court would not have ordered a retrial (with a quarantined prosecution team) without making further orders, for example, a permanent stay. That submission is misconceived, for the following reasons.

207 It appears that the appellants did not complain, either in the High Court or in the Court of Criminal Appeal, about the publication of examination material to the police. There was, therefore, very little discussion about what information the police received, or what they did with it (other than pass it on to the DPP). In the course of his reasons, Basten JA noted that the DPP had conceded that the NSWCC could not validly disseminate material to any person who was not part of the NSWCC.[165] The two police officers in charge of the investigation were on secondment to the NSWCC at the time of the examinations, and therefore part of the NSWCC. That may well explain why objection was only taken to the publication to police in so far as they had a statutory obligation to pass the material on to the DPP. Whatever the reason for the lack of such a challenge, neither the Court of Criminal Appeal nor the High Court was called upon to consider the legality or propriety of publishing to the seconded police.

208 The appropriateness of investigating police attending an ACC examination and having access to examination product was considered by Logan J in QAAB v Australian Crime Commission ("QAAB"),[166] in the context of an application to restrain the continuation of an ACC examination.

209 While executing a search warrant, police located a large quantity of a chemical, which could have been used as a precursor for illegal drug manufacture. After the execution of the search warrant, but before he was charged with any offence in relation to the chemical, the applicant was summoned to appear before the ACC during 2014.

210 The police officer responsible for the investigation in which the search warrant was issued was present at the initial examination. Logan J inferred that the officer's presence was not coincidental, and that he would, subject to any contrary direction by the examiner, be present at any continuation of the examination.[167]

211 The examiner had foreshadowed that she would be disposed to make a s 25A(9) direction, limiting the publication of the evidence to a particular team within the Queensland Police Service "for confidential intelligence purposes only", and prohibiting publication to the DPP for any prosecution against the applicant. His Honour said that that did not provide a basis for any present apprehension that the examination would necessarily be conducted in a way calculated to prejudice the applicant's fair trial, in the event that he was charged.[168]

212 Logan J also considered the appropriateness of the investigating police officer being present at any continuation of the examination. His Honour noted that in Lee(2), the High Court contemplated that a power akin to s 25A(5) of the ACC Act might, in a particular case, be exercised so as to exclude from being present "persons associated with the possible prosecution of the person giving evidence."[169] Logan J said:

In my view, the class of persons thus described is not limited to persons in the office of the Director of Public Prosecutions but extends to police officers and others investigating the possible commission of offences. Even though a non-publication order of the kind foreshadowed by the examiner might be made, it is by no means impossible to see how a police or other investigating officer who is present might be inspired to pursue other lines of inquiry directed to the gathering of evidence for the prosecution of an examinee just by hearing that person's evidence under examination. The pursuit of such lines of inquiry might not necessarily violate a non-publication order but might well nonetheless prejudice the examinee's fair trial were he to be charged.[170]

213 Unlike in the present case, the parties in QAAB agreed that the police officer fell within the definition of "member of staff of the ACC" in s 4 of the ACC Act. No objection had yet been taken to his presence at the examination, because no substantive questions had yet been asked. Logan J said that if, upon resumption of the examination, such an objection was taken, it would, in the first instance, be for the examiner to decide whether the investigator ought to be excluded. If the applicant was aggrieved by that decision, he could seek judicial review.[171]

214 In R v X,[172] during an ACC examination, the accused was questioned about the subject matter of some pending drug charges. As the examination took place in early 2011, before the decision in X7(1), it was not perceived at the time that there was any problem examining him, provided that the appropriate safeguards afforded by s 25A were in place. The non-publication direction made in that case precluded publication to any person "who may be involved in the investigation" of the accused, as well as any member of the office of the NSW DPP.

215 The trial judge had determined that the prosecution should be stayed, in the light of the decision in X7(1). That was not because X7(1) created "a class of persons who would be automatically entitled to a stay of proceedings"; his Honour accepted that he was still required to consider the case on its merits.[173]

216 The trial judge had noted that the examination related "virtually in its entirety" to the matters the subject of the charges and had, at times, been forcefully conducted by counsel assisting.

217 More significantly, material in the examination appeared to have got into the possession of investigating police, contrary to the non-publication direction. On the same day as the ACC summons was issued, the accused had declined a request to be interviewed by police. There was no evidence that, at that stage, the police knew the whereabouts of the property where the drugs were alleged to have been manufactured. At his examination, six days later, the accused was asked at length about the location of the property. Twelve days after the examination, police went to the area and found the property. They obtained a search warrant and found items there, including a cigarette butt with DNA consistent with the accused's profile.

218 The trial judge described the timing of what had occurred as "an unusual coincidence, to say the least". His Honour said that this "tended to suggest" that the examination may have been for a collateral purpose, rather than to assist the ACC in its functions and obligations. He concluded that the accusatorial process had been fundamentally flawed, such that it was now impossible for the accused to have a fair trial.[174] Accordingly he granted a permanent stay of the prosecution.

219 The primary ground of appeal was that the trial judge's finding that information from the accused's examination may have been disclosed was not open on the evidence; alternatively, that he erred in concluding there was no remedy available to ensure the accused received a fair trial other than a permanent stay.

220 After a detailed consideration of the decisions in X7(1), Lee(1) and Lee(2), Hidden J (with whom Simpson and Hamill JJ agreed) concluded that it was not open to the trial judge to have come to the conclusions that he did, on the state of the evidence before him. They said the evidence was unsatisfactory for a number of reasons. First, because there had been no oral evidence, the allegations of unauthorised access to the examination product, and collateral purpose, had not been put to the relevant witnesses. Secondly, the prosecutor was ill-equipped to deal with the matter, as he had not had access to the transcript of the examination.[175]

221 In all the circumstances, the Court of Criminal Appeal concluded that the trial judge's discretion had miscarried. They said that the matter called for re-examination and, perhaps, further evidence.[176]

222 X7 came back before the NSW Court of Criminal Appeal in X7 v R ("X7(2)").[177] After being arrested and charged with conspiracy offences, X7 was summoned to appear and give evidence at an ACC examination in early 2011. Asked questions about the offences with which he had been charged, he claimed the privilege against self-incrimination, and refused to answer questions. He was informed that he would be charged with failing to answer questions. The examiner made a direction under s 25A(9) of the ACC Act, that the officers of the CDPP and police officers associated with the prosecution of the offences with which X7 was charged were not to receive evidence given by X7.[178]

223 After the High Court answered the case stated in X7(1), X7 applied to the District Court of NSW for a permanent stay of the proceedings relating to the charges. In refusing to grant the stay, the primary judge noted that the evidence established that nobody associated with the investigation of X7 was present at the ACC hearing, and there was no evidence of any dissemination to anyone involved in the investigation or prosecution of the charges. Accordingly, her Honour held that X7 had not demonstrated he would suffer any actual prejudice were the trial to proceed.

224 On appeal, Bathurst CJ (with whom the other judges agreed), stated that none of the earlier cases had dealt with the question of whether, and in what circumstances, a permanent stay should be granted if the examination of a charged person, unauthorised by statute, took place, or the content of an authorised examination had been transmitted to prosecuting authorities contrary to a direction designed to protect the accused person against derivative use of the answers and other examination material.[179]

225 Bathurst CJ said that the authorities demonstrated three matters:

(a) First, the power to grant a stay is one that will be exercised rarely. That is unsurprising, as in criminal proceedings there are significant countervailing considerations, namely, the interests of the community and the victims of crime in the enforcement of the criminal law;[180]

(b) Secondly, a stay will be ordered where there is a fundamental defect of such a nature that there is nothing a judge can do in the conduct of the trial to relieve against its unfair consequences. Implicit in that proposition is that it is necessary to identify both the fundamental defect and its unfair consequences. The court must be satisfied that continuation of the proceedings would, not merely could, be unfairly or unjustifiably oppressive;[181] and

(c) Thirdly, irrespective of whether or not unfairness is demonstrated, a stay may be granted if the proceedings in question are an abuse of process, in the sense that the use of the court proceedings brings the administration of justice into disrepute.[182]

226 The court held that neither X7(1) nor Lee(2) compels the conclusion that the fact of an unauthorised examination, on its own, requires a permanent stay of criminal proceedings relating to the matters the subject of the examination.[183] In deciding that a permanent stay should not be granted in X7(2), the court acknowledged that the holding of the examination in relation to pending charges had involved a contempt of court, which could not be purged. However, there was nothing to suggest that the examination was not conducted by the ACC in the bona fide belief that it was authorised by the ACC Act.[184]

227 X7(2) is yet another example of a permanent stay application failing, because of the state of evidence at the time of the hearing. The Court of Criminal Appeal said that if, in fact, the examination was productive of actual unfairness, X7 could apply under s 25A(10) to vary the non-publication direction, to enable a judge hearing the stay application to view the examination material, in order to decide whether there was actual unfairness such that a permanent stay should be ordered.

228 The relevant principles came before the High Court for further discussion in Commissioner of the Australian Federal Police v Zhao ("Zhao").[185] The case did not involve a compulsory examination. Rather, it concerned whether property confiscation proceedings brought by the AFP should be temporarily stayed, pending the determination of criminal proceedings relating to the same offence.

229 The accused complained that in order to defend the civil proceedings, he would have to give evidence of matters relevant to his defence of the criminal charges, and thereby waive his right to silence. He was also concerned that cross-examination may result in further investigation against him.

230 In their joint judgment, the High Court held that the risk of prejudice if a stay of the confiscation proceedings was not granted was plain; it was not necessary for the accused to say any more than he did on the application for a stay, in order to identify that risk, given that the offences and the circumstances relevant to both proceedings were substantially identical.[186] The court rejected the AFP's suggestion that the accused should state the specific matters of prejudice before a stay could be contemplated - to do so would make the risk of prejudice a reality, by requiring the accused to reveal information about his defence.[187]

231 Zhao is not directly on point, in so far as the court only granted a temporary stay of the civil proceedings, pending the finalisation of the criminal proceedings. However, in referring to Lee(2), the court noted that "an important aspect of a criminal trial, which follows from a fundamental principle of the common law, is that the prosecution is to prove the guilt of an accused person and cannot compel a person charged with a crime to assist in the discharge of its onus of proof."[188] In so remarking, the court appears not to have embraced the obiter remarks by Gageler and Keane JJ in Lee(1), to the effect that being forced to disclose your defence does not involve the deprivation of a legitimate forensic advantage.

232 The long-running litigation involving Seller and McCarthy came before the NSW Court of Criminal Appeal again, in April 2015 ("Seller(3)").[189]

233 At their trials, Seller and McCarthy sought orders prohibiting Tang (the ATO officer who had been present at their examinations) from giving evidence, and prohibiting any person who had read the compulsorily acquired material from giving evidence or being engaged by the CDPP. They sought a temporary stay, pending the appointment of a fresh prosecution team. They also sought a permanent stay, on the bases that: the examinations were unlawful, because they had been conducted for the purpose of locking them into a story; and the accusatorial process had been fundamentally altered by the dissemination.

234 The trial judge held that the fundamental right of Seller and McCarthy to a fair trial called for the exclusion of Tang's evidence; however, the prosecution team should not be removed, and a permanent stay should not be granted. All of those orders were the subject of appeal.

235 The Court of Criminal Appeal held that any risk of upsetting the balance between the power of the State and the accused, by the dissemination of compulsorily acquired material, is open to be remedied by discretionary orders prohibiting a witness who has had access to compulsorily acquired material of the accused from giving evidence at the accused's trial.[190]

236 The court held that the fact that a proposed prosecution witness was present during the examination of an accused, or had read the examination transcript, may not in all cases alter the accusatorial process in a fundamental respect. The question whether such a witness ought to be excluded from giving evidence at trial depends on the material the witness has been exposed to, and the evidence the witness proposes to give, in the context of the issues in dispute at trial, in an adversarial setting where the prosecution has the obligation of proving guilt.[191]

237 The decision to prohibit Tang from giving evidence at trial was held to be appropriate. Otherwise, the accusatorial process would be fundamentally altered, in the sense described in X7(1) and Lee(2), because of the following findings:

(a) Tang was privy to the examinations and compulsorily acquired material;

(b) Tang's evidence would be the vehicle through which a good deal of the prosecution's documentary evidence was to be led;

(c) Tang was assisted in his task as an investigator, and as a witness, by having access to the compulsorily acquired material; and

(d) Seller and McCarthy's entitlement to present or develop their defence through cross-examination may be hindered by the cross-examiner being forced to exercise constraint, so that their questions did not trespass on compulsory acquired information, or risk the exposure of that material.[192]

238 That conclusion was reached, notwithstanding that Tang's proposed evidence did not depend on, and was not substantially derived from, the compulsorily acquired material, and that the CDPP was unaware of the material to which Tang had access.

239 The court held that there was no need for a temporary or permanent stay, because an assurance had been given that no member of the current prosecution team had read the examination material, and the only potential witness privy to the material (Tang) had been excluded from giving evidence.

240 The dissemination should not have occurred, by reason of s 25A(9). However, the mere fact of dissemination to persons not involved in the conduct of the trial would not alter the accusatorial process to such an extent as to warrant a stay.[193] Nor did the fact that persons present during the examinations may have been party to the formulation of the charge; the new prosecuting team had determined that the charge was appropriate after reviewing the admissible evidence.[194]

241 The court also held that the ACC investigation was conducted for a proper purpose, namely, for the purpose of a special ACC operation/investigation. The court said that even if the purpose was to lock Seller and McCarthy into a story and test inconsistency, that was not necessarily inconsistent with the ACC's legitimate purpose of investigating the schemes and their role in them.

242 Even if the investigation had been conducted in excess of, or was an abuse of, power, it would not follow that a stay should be granted, as the criminal proceedings did not depend on the contents of the examination, and the compulsorily acquired information was not admissible in evidence or available to the prosecution team.[195]

243 The CDPP and ACC's submissions as to what the law should have been understood to be, at the relevant times, fail to reflect both the terms of the ACC Act, and the approach adopted by examiners and judges in the cases that had been before the courts.

244 For example, they assert that it would have appeared at the time of the ACC examinations that all derivative use was permitted. In support of that proposition, they primarily rely on the decision in Boulton. But, as discussed earlier, Weinberg J was only discussing derivative use in the context of the construction of ss 30(4) and (5) of the ACC Act. It was no part of his Honour's task to consider what limits provisions such as ss 25A(3), (9) and 29A(2) may place on permissible derivative use. At the time of the examinations of the ACC accused, there was no authority that had suggested that all derivative use was permitted, in circumstances in which protective provisions such as those clearly applied.

245 The CDPP and ACC also say that there was "no authoritative judicial statement preventing the presence of investigators at an examination," and "nothing in the case law preventing the dissemination of examination material to investigators and prosecutors", prior to charges being laid. Those propositions may be true, in a literal sense. However, they ignore the fact that no occasion had arisen for a court to make such a statement, because of what examiners had in fact been doing to prevent such things from happening.

246 Courts had not needed to consider the limits of permissible derivative usage, because of the steps taken by examiners to quarantine examination material.

247 The CDPP asserts that the decision of Heenan J in Bartlett v The Queen [No 6] ("Bartlett"),[196] is authority for what the "ACC's dissemination practice" was in the period 2007-2010. That overstates the position, for the following reasons.

248 In Bartlett, the three applicants had been examined on multiple occasions between 2005 and 2009. At various dates between 2007 and the end of 2009, the examiner (who appears to be the same one as in this case)[197] made directions pursuant to s 25A(9), which authorised the delivery of examination transcripts to the CDPP. Heenan J described it as "the usual practice of the examiner to make a non-publication direction after these kinds of examinations, but to allow publication of the evidence to prosecuting authorities."[198]

249 Bartlett was decided in 2013, between 4 and 6 years after the relevant non-publication directions had been made. It is not clear from his Honour's reasons what evidence there was before him in relation to Sage's usual practice at the relevant times, or whether he was simply proceeding on the basis of an agreed (or non-contested) fact as to that practice. Taken at its highest, his Honour made a finding about Sage's practice at a particular time. Heenan J did not purport to make a finding as to "the former practice of the ACC and its understanding of the law", as the CDPP asserts he did. Had he done so, I would not be in a position to give it any great weight, without understanding the evidentiary basis for that finding, and given the matters discussed in the next paragraph.

250 I note that Sage's asserted practice in Bartlett is completely inconsistent with what Sage did by way of non-publication directions in the case of ABC v Sage. Unfortunately, it is not clear whether Sage was the examiner in any of the other cases that had been decided before the end of 2010, as the examiner's name is usually not disclosed in the court's reasons for decision.

251 At the time of the examinations of the ACC accused, the following should have been understood to be the state of the law in relation to the presence of, or publication to, investigating police or prosecutors:

(a) The High Court had been very concerned about the presence of the investigating police officers in Hammond, notwithstanding that the examination was to take place in a confidential session;

(b) In each of the cases involving an examination under the ACC Act, which had been before the courts, the examiner (including the current examiner, in ABC v Sage) and/or ACC staff had made sure that no investigating police officers or prosecutors attended the examination, or were permitted to receive examination material; and

(c) There had been no case in which it had been suggested that it would be appropriate for investigating police officers or prosecutors to be present at an ACC examination, or to receive examination material.

252 Much of the judicial debate before X7(1) had focussed on whether persons who had been charged could be compulsorily examined about the subject matter of the charge. But, whatever view individual judges had taken about that particular matter, courts had consistently stressed the importance of protective provisions such as s 25A(9) to the right to a fair trial. Section 25A(9) was clearly expressed to impose obligations on an examiner in respect of both persons who have been charged, and those who "may be charged".

253 At no time, before or since the examinations of the ACC accused, has there been any judicial authority that has suggested that the words "may be charged" in ss 25A(9) and 29(2) mean anything other than their ordinary and natural meaning.

254 The ACC accused argue that the determinations under which they were purportedly examined were invalid because:

(a) They were drafted too broadly, and did not identify with sufficient particularity the factual circumstances or allegations that were being investigated (as required by s 7C(4) of the ACC Act); and/or

(b) The ACC board did not consider whether ordinary police methods of investigation were likely to be effective, before making the determinations (as required by s 7C(3) of the ACC Act).

255 They say that their examinations, and the subsequent dissemination of their examination material, were therefore unlawful.

256 A question also arises as to whether s 16 of the ACC Act precludes the ACC accused from challenging the validity of the determinations.

257 Leckenby and Brady were examined under the Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 (as amended) ("the financial crimes determination"). That determination was made on 25 June 2008, and gave the ACC authority until 30 June 2009. On 10 June 2009, the ACC board amended the determination, by extending its operation until 30 June 2010.[199]

258 Clause 4 of the financial crimes determination authorised the ACC to investigate "the matter mentioned in Schedule 1 relating to federally relevant criminal activity". Schedule 1 was drafted in extremely broad terms. The authorised investigation was described in clause 1 of Schedule 1 as being:

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

259 That is the standard way of describing the authorised investigation, which has been adopted in other determinations that have been before the courts.

260 Clause 3 of Schedule 1 referred to "the general nature of the allegations" being that, from 1 January 1995, certain persons acting in concert may be engaged in one or more of dozens of separately-identified federal offences. The offences covered many different types of financial or property-related crimes, including tax evasion, conspiracy to defraud, forgery, making false instruments, false accounting, copyright infringement, vehicle rebirthing, currency offences, credit card offences, superannuation offences, theft, and possession and handling of stolen property. They also included other unlawful activities that may be directly or indirectly connected with such financial crimes, including drug offences, violence-related offences, perverting the course of justice, and bribing or corrupting a Commonwealth public official.

261 Relevantly for present purposes, the offences listed in clause 3 included money laundering within the meaning of the Proceeds of Crime Act 1987 (Cth),[200] and dealing with money or other property contrary to various provisions in s 400 of the Criminal Code (all of which will be referred to collectively in these reasons as "money laundering"). Those are the offences which the examiner, Sage, purported to be investigating, when he determined to examine and summons the ACC accused.

262 Clause 2 of Schedule 1 provided that the "general nature of the circumstances constituting federally relevant criminal activity" were those implied from various different types of information available to Australian law enforcement agencies, including: reports by cash dealers of suspicious transactions; failure of people to lodge tax returns; the acquisition of assets totally disproportionate to income; and the increasing complexity and globalisation of business structures and financial arrangements.

263 As with the "allegations" in clause 3, the "circumstances" in clause 2 covered an extraordinarily diverse range of circumstances, with little apparent connection to each other. In particular, the circumstances did not appear to be directed to a specific group of possible offenders.

264 The determination relied upon to examine Hutchinson and Wong was the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering) 2010 ("the money laundering determination"), which was made on 9 June 2010. The ACC's authority under that determination was to last until 30 June 2011.

265 The structure and content of the money laundering determination were substantially similar to the financial crimes determination. In so far as there are any differences between the two determinations, it is not suggested they are relevant for present purposes.

266 Foreign bribery was not mentioned anywhere in either of the determinations.

267 Determinations in terms similar to the financial crimes and money laundering determinations had been in force for each year since 2003. According to Deakin, the HOD for the money laundering determination, those determinations had been treated by the ACC as authorising a series of quite discrete investigations.

268 During closing submissions, the ACC sought to tender a bundle of unrelated determinations, in order to demonstrate that the ACC has a practice of drafting determinations very broadly. I declined to receive them, for two reasons. First, the evidence had closed a considerable time earlier, and no good reason was given for seeking to tender them at such a late stage. Secondly, even accepting that the ACC has adopted a practice of drafting determinations at an extremely high level of generality, that would not establish the legality of such a practice, far less the validity of the two determinations before me.[201]

269 The ACC accused submit that both determinations were too broad because of the following features:

(a) They referred to "circumstances" that were implied from a series of facts, which were connected only in that money or transactions for value were involved;

(b) They referred to a broad variety of "allegations" that were merely a concern that people may have committed, or were committing, or may in the future commit, a multitude of dishonesty offences or other financial crimes, or crimes related to financial crimes; and

270 The ACC and CDPP do not dispute that the determinations have those features. However, they say that that is nevertheless permissible under s 7C(4).

271 Section 7C(4) provides that a determination that an operation or investigation is special must:

(a) describe the general nature of the circumstances or allegations constituting the federally relevant activity; and

(b) state that the relevant crime is, or the relevant crimes are or include, an offence or offences against a law of the Commonwealth, a law of a Territory or a law of a State but need not specify the particular offence or offences; and

(c) set out the purpose of the operation or investigation.

272 The ACC accused do not allege non-compliance with sub-ss (b) and (c), only with sub-s (a).

273 Section 7C(4) is to be construed in the context of the scheme of special operations and investigations contemplated by the ACC Act.

274 There is no dispute that the compulsory examination powers are exceptional, and should only be exercised in those circumstances in which it is appropriate to do so. The ACC Act established a structure that restricts the investigations and operations in which the examination powers are available.

275 The ACC accused submit that the following points demonstrate that the ACC board is required to descend into some factual specificity in a determination:

(a) First, in order to play a restricting role within the structure of the ACC Act, a determination must be "specific";

(b) Secondly, in order for the ACC board to contemplate whether ordinary police methods are likely to be effective (as required by s 7C(3) for special investigations), the board must contemplate the subject matter of the particular investigation. That requires something more specific than a generic type of offending, because whether ordinary police methods would suffice will always depend on the factual circumstances of the particular offending;

(c) Thirdly, in order for the ACC board to contemplate whether ordinary police methods have been effective in obtaining the information or intelligence (as required by s 7C(2) for special intelligence operations), the board must be considering a particular factual situation;

(d) Fourthly, the requirement that the ACC board describe in writing the general nature of the circumstances or allegations, and the purpose of the operation or investigation, requires the determination to descend into some particularity about the facts;

(e) Fifthly, unless a determination is specific and limited, the IGC could not fulfil its oversight role;

(f) Sixthly, the expression "an investigation" is consistent with an investigation into particular circumstances or allegations;

(g) Seventhly, the obligation to specify the purpose of a special investigation requires the ACC board to turn its mind with some specificity to the facts being considered; and

(h) Eighthly, the ACC explanatory memorandum envisaged that, in considering the necessity for coercive powers in each investigation, the ACC board would have regard to a particular factual substratum.

276 In response, the ACC and CDPP say that the ACC accused's eight points misconceive the terms, context and policy behind s 7C(4), and the operational context within which the ACC board operates. They say that it would defeat the object of the ACC Act to require the ACC board to have in mind specific details of the investigation in question (as opposed to the general subject matter of concern, for example, terrorism or tax evasion) at the point in time at which it deliberates under s 7C. The ACC board comprises the heads of State and Federal bodies; they say it cannot have been intended that those people should convene and make s 7C determinations on a regular basis, for each individual investigation, only after specific details are known.

277 Section 7C(4) requires that a determination describe the "general nature" of the circumstances or allegations constituting the federally relevant criminal activity. The ACC and CDPP say that, bearing in mind the operational context within which the Board is required to operate, it would be absurd to suggest that the Board must attend to s 7C(3) and (4) requirements for each investigation into particular facts. They say that the Board is simply required to approve, at a general level, a special investigation or special operation in respect of general subject matters, which it is satisfied ought to attract the exercise of the coercive powers.

278 The ACC's predecessor, the NCA, was authorised to conduct special investigations of matters relating to "relevant criminal activity". In the context of Commonwealth offences, that was done by a written notice from the relevant minister referring a matter to the NCA; there were comparable provisions for referrals by State ministers. Section 13(2) of the NCA Act required such a notice to "describe the general nature of the circumstances or allegations constituting the relevant criminal activity", but stated that the notice was not required to "specify the particular offence or offences" under investigation. Section 13(2) of the NCA Act was relevantly identical to s 7C(4) of the ACC Act.

279 There are two relevant decisions of the Full Court of the Federal Court, which considered the degree of specificity required to comply with s 13(2) of the NCA Act.

280 In National Crime Authority v A1 ("NCA v A1"),[202] the court considered a challenge to the validity of a ministerial notice requiring the NCA to investigate whether relevant offences had been, were being, or in future may be, committed by "members of certain clubs, such clubs having been identified ..., or persons associated with the members or clubs."[203] The "certain clubs" were not identified in the notice, but had been identified in a separate briefing to the minister. The "activities" that were to be investigated were set out in a long list, which included about half of the offences listed in the definition of "relevant offence" in the NCA Act.[204]

281 Von Doussa and Sundberg JJ upheld the validity of the notice; Black CJ dissented. In their joint judgment, the majority said that:

[A] reference will be valid which states that the general nature of the allegations is that unspecified persons may have engaged in or be engaging in one or more of a list of activities which are relevant offences. For example, the Minister might become aware of a vast increase in the amount of heroin being trafficked in Sydney. He could refer to the NCA for investigation the question whether the offence of heroin importation has been or is being committed, and if so by whom.[205]

282 Since it was not necessary to identify suspected offenders at all, a reference that purported to do this in a limited way (such as by referring to clubs identified only to the Minister) could not thereby be rendered invalid.

283 The majority also held that there was no need to specify a particular time frame within which the conduct to be investigated had occurred. They said:

[T]he NCA engages in investigation unlike those conducted by the ordinary police forces. It does not necessarily proceed from a discovered offence. The inquiry may be as to whether any relevant offences have been committed or are being committed. Putting aside possible current offences, there is no reason why an investigation into possible past offences should be limited as to time. The imposition of a time-frame might quite arbitrarily prevent the investigation or discovery of certain crimes.[206]

284 The majority further said that the NCA's function was inquisitorial, not adversarial. It must pursue lines of inquiry, and in doing so may find that other lines of inquiry appear to be profitable. Because the NCA was an investigative body, "it must necessarily embark on a fishing expedition."[207]

285 In summary, the majority rejected the argument that a Ministerial reference must identify for investigation particular persons, time frames, conduct or transactions.[208]

286 Like the majority, Black CJ accepted that generally it was not necessary for a reference to identify specific criminal activities, persons or conduct.[209] However, his Honour found that the particular reference was deficient in two respects:

(a) First, if in truth a reference was concerned with people or organisations with a distinctive nature or characteristic, then "the general nature of the ... allegations" may (depending on the circumstances) require some reference to those specific features. Given that the reference related to clubs that had been described to the minister as "outlaw motor cycle gangs", describing them in the s 13(2) notice simply as "certain clubs" was insufficient. His Honour expressly declined to decide whether, if the notice had referred to "certain motor cycle clubs", that would have been sufficient;[210] and

(b) Secondly, Black CJ held that specific dates were not required. But the failure to specify any time-frame at all in respect of past criminal activity meant that the general nature of the allegations had not been specified.[211]

287 NCA v A1 was referred to by the Full Court of the Federal Court in AB v National Crime Authority ("AB v NCA").[212]

288 The notices of referral in that case were far more specific than in NCA v A1. The general nature of the allegations in the notices was that certain directors of Elders IXL Limited, either alone or in concert with others, improperly used their positions as directors in various specified ways "in relation to transactions concerning (directly or indirectly) the disposal and/or acquisition of securities" in the company.[213] It was argued that the notices were invalid because they did not specify a time-frame, and used language that was uncertain. In their joint judgment, Black CJ, Sundberg and North JJ held that the notices were valid.

289 As far as a time-frame was concerned, the court noted that, in NCA v A1, von Doussa and Sundberg JJ had said that there was no need to specify a time-frame at all. However, the court also noted that Black CJ had said that in some cases the context of allegations of criminal activities may be such as to fix them with a time frame; the court said that was true with the notices in that case.

290 After examining the references to particular offences in the notices, and the limitation periods for some of those offences, the court held that "[i]n practical terms therefore, what is being inquired into is conduct that occurred within the five years preceding the date of the references."[214] That is to say, the court in AB v NCA did not indicate which of the approaches in NCA v A1 it preferred; rather, it seems to have held that the notices were not invalid using either approach.

291 The court dismissed the other attacks on the validity of the notices for the following reasons. Although wide, the words "directly or indirectly" and "in relation to" were not impermissibly wide. The fact that the word "securities" was capable of more than one meaning also did not vitiate the notices. Finally, in describing the conduct constituting the relevant criminal activity, the notices did little more than adopt the language of the relevant statute; the court held that that was an acceptable way of stating "the general nature of the allegations."[215]

292 The ACC accused say that cases decided under the NCA Act are not authority for the proposition that a determination under the ACC Act may be similarly broad. They say that to simply transpose the Federal Court's reasoning to the present context would be to ignore the different statutory architecture of the ACC Act, and the differences between the Minister's role under the NCA Act and the ACC board's role under the ACC Act. In support of that submission, they rely on the observation by Hayne and Bell JJ in X7(1) that "[t]he ACC Act must be construed according to its terms, not by reference to earlier legislation dealing with another body, no matter what similarities the two bodies may be thought to have in their constitution, powers or functions."[216]

293 Hayne and Bell JJ made that comment in the context of a discussion about the direct and indirect use of answers given in a compulsory examination; as discussed earlier in these reasons, the NCA Act contained a derivative use immunity provision, which was not replicated in the ACC Act. Their Honours were not considering the validity of a determination.

294 The observations of Hayne and Bell JJ are an important reminder of the need to construe the ACC Act according to its terms. But their Honours did not suggest that courts could never have regard to decisions concerning identically-worded provisions in the NCA and ACC Acts, if that was appropriate.

295 There is nothing in the ACC explanatory memorandum or other extrinsic materials to suggest that it was intended that the ACC Act would require a determination to have a greater degree of factual specificity than was required in a notice under the NCA Act.

296 Although there are many cases in which some form of challenge has been made to the validity of a determination made, or summons issued, there has been almost no judicial consideration of the degree of specificity required in a determination under the ACC Act.

297 In its written submissions, the ACC asserts that there have been several cases where courts have endorsed s 7C(1)(d) determinations "made in terms similar to" the financial crimes and money laundering determinations, including the fact that the determinations "need not have a temporal constraint." That submission overstates the position.

298 Until now, it appears that no court has been asked to consider whether the financial crimes or money laundering determinations lack sufficient particularity. Although the financial crimes determination was the relevant determination in GG v Australian Crime Commission ("GG(1)"),[217] it was not challenged in that case on the grounds of lack of specificity. Nor was I referred to any case in which a court has considered a determination of similar breadth to the financial crimes or money laundering determinations.

299 The ACC suggested that X v Australian Crime Commission ("X v ACC")[218] was authority for the proposition that determinations need not have a temporal constraint. But, when Finn J said in that case that "the ACC Act does not impose, or make provision for the imposition of time limitations,"[219] he was talking about time limits on the duration of the investigation.[220] His Honour was not addressing the temporal question which arises here: namely, whether a determination needs to specify a time-frame for the criminal activities that are to be investigated.

300 After the completion of oral submissions in this case, Wigney J handed down his decision in XCIV v Australian Crime Commission ("XCIV").[221] That case concerned the Australian Crime Commission Special Investigation Authorisation and Determination (Highest Risk Criminal Targets No 2) 2013 ("the HRCT determination"). The applicant challenged both the validity of the HRCT determination, and a summons issued under it, on many of the same grounds as put forward in this case.[222]

301 The applicant argued that the HRCT determination failed to comply with s 7C(4) of the ACC Act, because it failed to describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity. Wigney J rejected that argument, and held that the determination did not need to "identify by name suspected offenders, or detail specific offences, or specify a time frame in which the federally relevant criminal activity occurred, or identify specific conduct by specific persons, or precise transactions for investigation."[223] In reaching that conclusion, his Honour cited with approval the findings and reasoning of the majority in NCA v A1, in respect of what he described as the "cognate powers" under the NCA Act_._

302 In XCIV, the applicant argued that the HRCT determination should be construed in the context of the provisions in the ACC Act which provided for oversight by the IGC and minister; he argued that if a broad determination was permitted, that would effectively remove such oversight and direction of the ACC board. Wigney J rejected that argument: the fact that the statutory scheme included some oversight of the ACC board did not mean that the otherwise broad power of the board to determine that an investigation was special should be confined or narrowly construed.[224]

303 The HRCT determination was specifically directed at the activities of "highest risk criminal targets (HRCTs)", which were defined as "entities, including those entities identified within the (classified) National Criminal Target List (NCTL), which an authorised ACC officer has reasonable grounds for suspecting" of certain specified matters. The "general nature of the allegations" was that HRCTs, acting in concert with others, may be engaged in one or more of dozens of separately-identified offences (including what were described as "incidental offences"); the large number and enormous variety of offences was comparable to those in the financial crimes and money laundering determinations. The "general nature of the circumstances" were those implied from information available to Australian law enforcement agencies, indicating that HRCTs were: responsible for a significant proportion of serious and organised crime; typically involved in certain activities; or resilient to traditional law enforcement investigations.

304 As with the financial crimes and money laundering determinations, the HRCT determination referred in general terms to offences of violence and theft; the applicant in that case argued that such offences did not fall within the definition of federally relevant criminal activity, and the determination was therefore beyond power. Wigney J held that the HRCT determination was an "instrument" for the purposes of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"). The effect of s 46 of the Interpretation Act was that references in the HRCT determination to offences of violence and theft must be read as meaning either Commonwealth offences involving violence and theft, or State offences involving violence and theft that have a federal aspect.[225]

305 Wigney J accepted that the scope of the investigation authorised by the HRCT determination was extremely broad. However, although the circumstances and activities covered a very broad range of criminal activities, they were not unlimited; they were limited by reference to particular offences, and because the activities must be engaged in by entities that had particular characteristics (namely, HRCTs).[226]

306 In the present case, the determinations do not identify a specific target group equivalent to HRCTs. But, following the reasoning in NCA v A1, Wigney J held that s 7C did not require that a determination identify any suspected offenders, or only identify them in a very specific way. So, a determination that described suspected offenders in a limited way, for example, by reference to certain specified characteristics or attributes, was not invalid. That was the case even if the question of whether persons possessed those attributes was left up to the judgment of ACC officers.[227]

307 The applicant in XCIV also argued that because ACC officers decided whether an entity was an HRCT, there had been an impermissible delegation or sub-delegation of the power under s 7C by the ACC board to ACC officers. Wigney J rejected that argument. He held that the determination that the investigation was a special one was made by the ACC board. The fact that the circumstances and allegations were described in such a way that some judgment was called for by certain defined ACC officers did not mean that the determination power, or any part of it, was delegated to those officers. The ACC officers' role was to determine whether there were reasonable grounds for suspecting that particular entities have certain attributes that make them a particular risk to the community.[228]

308 I respectfully agree with the reasoning of Wigney J in XCIV. It accords with the previous Federal Court authority in relation to the identically worded provision in the NCA Act.

309 I am satisfied that the ACC Act allows for determinations to be drafted as broadly as the two determinations in question in this case. They are not invalid by reason of a lack of specificity.

310 But the fact that they can be drafted so broadly only serves to highlight the importance of the examiner acting independently and with appropriate rigour - as "the custodian", to use the label suggested by the ACC's counsel - when determining whether and, if so, how, to exercise the various examination powers.

Did the ACC board comply with the requirements of s 7C(3)?

311 Before the ACC board can determine that an investigation is a special one, s 7C(3) requires it to consider whether ordinary police methods of investigation into the matters are likely to be effective at understanding, disrupting or preventing the relevant criminal activity. This may be contrasted with the requirement in s 7C(2), which applies when the ACC board is considering whether an intelligence operation is a special one; in that case, the board must consider whether methods of collecting information and intelligence that do not engage the powers of the ACC Act have been effective.

312 According to the ACC explanatory memorandum: the threshold test for intelligence operations is more restrictive than that applicable to investigations, because of the broader scope of intelligence; and both threshold tests provide "an important safeguard" on the exercise of the coercive powers under the ACC Act.[229]

313 Section 7C(3) must be read as requiring the ACC board to not only consider whether, but also to determine that, ordinary police methods are not likely to be effective.[230] In the context of the ACC Act, "effective" means effective to permit the laying of charges against offenders; it should not be read as embracing any larger task of deciding whether individual criminal guilt is demonstrated.[231]

314 The ACC accused say that the ACC board failed to comply with the s 7C(3) requirement in several respects:

(a) The ACC board could not possibly have considered whether examination powers were necessary in relation to the subject matter of Operation Rune, because:

(i) Those ordinary police methods were still being used and had, by June 2010, led prosecutors to the view that there was a strong case; and

(ii) No information relating to Operation Rune was provided to the ACC board; and

(b) In the case of the financial crimes determination, to the extent that the ACC board addressed the effectiveness of ordinary police methods at all, it directed its mind to the wrong criterion.

315 No oral evidence was led as to what was discussed at any of the relevant ACC board meetings. However, the ACC produced documents in answer to calls by the ACC accused for the board minutes, and all documents that were before the ACC board for those board meetings.[232]

316 It is clear on the evidence, and the ACC concedes, that at no relevant time did the ACC board consider foreign bribery, far less the circumstances relating to Securency and NPA. However, for the reasons already given, I find that the ACC board was not required to consider the specific circumstances of Operation Rune. It follows that the ACC board was not required to consider whether ordinary police methods of investigation were likely to be effective in relation to the particular subject matter of Operation Rune.

317 As to the specific attack by the ACC accused on the financial crimes determination, the position is as follows.

318 The determination was approved at an ACC board meeting held on 25 June 2008. The only briefing paper provided to the board for that meeting was a document entitled "Statement in Support". It included a part headed "Whether Methods of Collecting Criminal Information and Intelligence that don't involve ACC Special Powers Have Been Effective (Subsection 7C(2) of the Act)". That is to say, the heading erroneously referred to the subsection and test for a special intelligence operation, not a special investigation.

319 There were three paragraphs of text under that heading. The ACC accused submit that all of the text related to s 7C(2) criteria. Certainly, the first paragraph did refer to matters that had occurred "over the past few years". However, the other two paragraphs were a mixture of backward and forward looking matters, which the ACC acknowledged were ambiguous, in terms of which criterion they were addressing.

320 The proposed financial crimes determination was also provided to the ACC board in the agenda papers for the June 2008 meeting. That document did not make the mistake of referring to s 7C(2); clause 6 correctly referred to s 7C(3), and stated that the ACC board had considered whether ordinary police methods of investigation into the matter mentioned in Schedule 1 were likely to be effective. The executed financial crimes determination (including clause 6) was in the same terms as the proposed determination that had been provided to the ACC board.

321 Relying on the erroneous reference to s 7C(2) in the briefing paper, the ACC accused urge the court to find that the financial crimes determination is invalid, because the ACC board directed its mind to the wrong criterion.

322 It is clear on the authorities that there is no requirement (in s 7C(4) or elsewhere) for the ACC board to state on the face of a determination that it has considered the requirement in ss 7C(2) or (3).[233]

323 There have been a few cases in which the relevant determination was completely silent about the requirements of ss 7C(2) or (3). In the absence of any evidence to suggest that the ACC board had not considered the issue, the courts in those cases found that invalidity had not been established.[234]

324 There have also been cases in which the relevant determination contained a standard form statement to the effect that the ACC board had considered the requirements of ss 7C(2) or (3). The courts accepted such statements on their face, and rejected any suggestion that it was necessary for the board to call oral evidence.[235] Nor could a Jones v Dunkel inference be drawn from the fact that no evidence was led on that issue; in the circumstances of those cases, the ACC was not required to explain or contradict anything in relation to the issue.

325 In this case, the ACC board did state in clause 6 of the proposed and executed versions of the financial crimes determination that it had considered whether ordinary police methods were likely to be effective. If that were the only evidence on the issue, it would have been sufficient to establish that there had been compliance with s 7C(3). But it is not the only evidence - the briefing paper suggests that the ACC board was asked to consider the requirements of s 7C(2), not s 7C(3).

326 The board resolution for the financial crimes determination recorded that the ACC board had resolved to authorise the ACC to conduct the special investigation under the determination, which had been provided to the board in the agenda papers. Unfortunately, it did not contain a statement like the one which appeared in the June 2010 board resolution for the money laundering determination, namely, that the ACC board had:

b) considered whether ordinary police methods of investigation into the matters are likely to be effective

c) determined that such methods that do not involve the use of coercive powers under the Act are not likely to be effective.

327 Had there been such a statement in the resolution for financial crimes determination, it would have made the position clearer; but its absence does not prove that the board did not consider the correct test.

328 The ACC raises the presumption of regularity. In general terms, the presumption is that an administrative act or decision, and the legality of steps taken pursuant to it, are presumed valid until the act or decision is set aside.[236] As the NSW Court of Appeal observed in Hill v Woollahra Municipal Council:[237]

The presumption is a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs... In deciding whether the presumption of regularity is rebutted, this inference from the ordinary course of human affairs carries some weight, which may vary according to the proved circumstances.[238]

329 In X v ACC, the applicant argued that an amendment to a determination was invalid because it did not on its face disclose that it had complied with the requirements of s 7C, and no evidence had been called on the issue. Finn J applied the presumption of regularity. His Honour held that the applicant had not discharged her burden of adducing evidence, from which a non-compliance with the requirements of the ACC Act could properly be inferred.[239]

330 In SS v ACC, Jagot J said, by way of obiter, that the presumption of regularity would operate with respect to all necessary conditions and formalities of the making of the determination and amendment in that case.[240]

331 It seems likely that the wrong heading and sub-section reference were included in the briefing paper as a result of careless cutting and pasting from other documents.

332 I am not persuaded that the ACC board members failed to apply the correct test, having regard to the following matters: the proposed and executed versions of the determination did refer to the correct sub-section and criteria; the presumption of regularity; and the fact that courts have regularly upheld the validity of determinations, without requiring the ACC to call evidence to prove that the requirements of ss 7C(2) or (3) have been met.

333 Section 16(b) of the ACC Act relevantly provides that if the ACC board has determined that an investigation is a special investigation, then except in proceedings instituted by the Commonwealth or a State Attorney-General, "any act or thing done by the ACC because of that determination must not be challenged, reviewed, quashed or called into question in any court on the ground that the determination was not lawfully made."

334 The CDPP (but not the ACC) argues that the challenges sought to be made by the ACC accused to the validity of the determinations are incompetent and precluded by s 16. I reject that submission, for the following reasons.

335 On its face, s 16 is concerned with attacks on acts or things done by the ACC "because of" a determination (such as issuing a summons, or conducting an examination), not attacks on the validity of determinations themselves.

336 Furthermore, the correct approach to the interpretation of a provision such as s 16 was set out in the plurality judgment in Plaintiff S157/2002 v The Commonwealth.[241] In construing statutory provisions in the context of the relevant Act as a whole, it is necessary to resolve the apparent conflict between provisions such as ss 7C(3) and (4) (which constitute a restraint on the exercise of a power) and a provision such as s 16 (which appears to treat as valid a determination that is in breach of the conditions for the exercise of the power involved). The plurality noted that an administrative decision which involves jurisdictional error is regarded in law as no decision at all:

[i]f there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described as "a decision ... made under this Act.[242]

337 I agree with the ACC's counsel that, in the present case, ss 7C(3) and (4) place inviolable limitations or restraints upon the exercise of the power to determine that an investigation is a special one; failure to observe such limitations or restraints would invalidate any determination. The relevant precondition for the operation of s 16 is set out in s 16(b): "... if an investigation into matters relating to federally relevant criminal activity is determined by the Board to be a special investigation." Section 16(b) will not be satisfied by a decision that is, in law, no decision at all.[243]

338 If, contrary to my earlier findings, any of the challenges to the validity of the two determinations were sustainable, s 16 would not preclude the ACC accused from raising them in this proceeding. Nor would it preclude them from attacking any acts or things done by the ACC (including the examiner) because of those determinations.

339 The concept of a "special ACC operation/investigation" is relevant to a number of provisions in the ACC Act. An examiner's powers to conduct an examination and summons a witness can only be exercised for the purposes of a special ACC operation/investigation.

340 "Special ACC operation/investigation" is defined in s 4(1) of the ACC Act as meaning:

(a) an intelligence operation that the ACC is undertaking and that the Board has determined to be a special operation; or

(b) 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.

341 The ACC accused argue that the definition imposes two requirements:

(a) The ACC must actually be undertaking an intelligence operation or conducting an investigation (in the sense of having its own active project underway); and

(b) There must be an ACC board determination that the operation or investigation is special.

342 The ACC accused say that the first of those requirements was not met on the facts of this case, and therefore the examinations and summonses were unlawful.

343 The ACC and CDPP dispute that the definition imposes that dual requirement. As a matter of construction, they say that the ACC is undertaking a special operation or conducting a special investigation whenever there is a special determination in place; there is no additional need for the ACC to actually have a specific project on foot. On their construction, the words "and that the Board has determined" mean "which the Board has determined".

344 There is some support for the ACC and CDPP's interpretation, in the following introductory observation by French CJ and Crennan J in X7(1):

Division 2 of Pt II of the ACC Act (ss 24A-36) (the examination provisions) provides for examiners appointed under the ACC Act to conduct compulsory examinations for the purposes of operations or investigations which are designated by the Board of the ACC as "special" operations or investigations.[244] (emphasis added)

345 However, the issue does not appear to have been the subject of argument in any of the authorities. It is therefore necessary to consider the words of the definition, and the context in which they appear.

346 There is a superficial appeal in the ACC accused's submission, in so far as the plain and ordinary meanings of "is undertaking" and "is conducting" do convey a sense of some activity actually taking place. However, the second part of the definition requires that the ACC board "has determined" the operation or investigation to be a special one. The only power that the ACC board has to a determine that an intelligence operation or investigation is special is the power in s 7C, which has been considered earlier in these reasons; that is the power to make a determination at the commencement of the operation/investigation. The ACC board has no power to determine that an operation/investigation is special after it is already underway, which is what the ACC accused's construction would require.

347 I accept the construction advanced by the ACC and CDPP. It follows that, in this case, the ACC was conducting a special ACC investigation at the times when the financial crimes and money laundering determinations were operative.

348 The ACC accused's argument that the summonses and examinations were unlawful, because there was no special ACC investigation being conducted, must therefore fail.

What, if any, investigation, was the ACC conducting?

349 If, contrary to that finding, the construction advanced by the ACC accused was correct, I would need to consider whether the ACC was in fact conducting an investigation at the relevant times.

350 In any event, it is convenient to consider here what the ACC was actually doing, when the summonses were issued and the examinations conducted. That matter is relevant to a consideration of the examiner's purpose and conduct, and to the broader criticism that the ACC was little more than a "hearing room for hire" for the AFP.

351 In general terms, the ACC accused say the ACC was not in fact conducting an investigation at the relevant times. It had referred the Securency foreign bribery matter to the AFP in early 2009, and was conducting no investigation of its own, when Sage determined to hold the examinations and issue the summonses. They say the only investigation being conducted was an AFP investigation, and the AFP were simply using the coercive powers of the ACC for the AFP's own purposes.

352 The ACC and CDPP dispute those submissions. They say that the evidence shows that the examinations of the ACC accused, and of other relevant witnesses, were part of a joint investigation conducted by the ACC and the AFP. They say that ACC Projects Agrale and Saintly were for the purposes of furthering the special investigations conducted by the ACC under the determinations.

353 Before I consider the evidence as to what the ACC was actually doing, it is convenient to dispose of the ACC's argument that an examination is itself an investigation. The ACC says that even if it was not otherwise conducting an investigation, it was doing so when Sage conducted the examinations. That argument is circular and fundamentally flawed, because an examination can only be conducted for the purpose of a special investigation.[245]

354 The following is a summary of the ACC's relevant activities, before, during and after the examinations of the ACC accused and other Securency and NPA witnesses.

355 The financial crimes determination was authorised in June 2008, well before any issue related to Securency foreign bribery allegations had come to the attention of the ACC. The GOC management committee set up ACC Project Agrale, on an unknown date, to cover the investigation of the vast range of criminal activity that fell within the scope of the financial crimes determination.

356 In December 2008, the ACC received information from James Shelton, an "unregistered human source", concerning allegations that Securency was involved in foreign bribery. The allegations related to the practices of Securency's senior managers and overseas agents, and commission payments offered by Securency to agents in order to obtain contracts.

357 In March and April 2009, the ACC conducted an initial assessment of the Shelton allegations, which incorporated financial analysis carried out by AUSTRAC. Based on that assessment, Bruce Bullock (Operations Manager, Financial Crimes Program, ACC) produced an undated investigation proposal. Bullock suggested that a GOC application be made for an operation to investigate the claims of bribery of foreign officials by Securency agents in a number of countries. He noted 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.

358 Contrary to the CDPP's submissions, Bullock was not recommending a joint investigation involving the AFP. He was advising against a full scale investigation at that time, because it would require bringing in the AFP and overseas agencies.

359 Bullock recommended that the next step would be conducting preliminary discussions with a number of cooperative witnesses identified in the initial assessment; either by way of examinations or "general discussion" with witnesses who were not implicated in the allegations of corruption. He advised against the examination of employees who were likely to be implicated in the allegations.

360 There is a lack of evidence as to what happened within the ACC in relation to the Bullock proposal. No evidence was called from Bullock, or anyone with personal knowledge of what happened to the Bullock proposal. No formal written application to the GOC was produced to the court. Dines, the relevant HOD, said he could not now recall whether a formal written application was made to the GOC for approval to conduct coercive examinations under the financial crimes determination, or whether such approval was given. Because various documents showed that the GOC did receive progress reports about the examination program from time to time, Dines simply assumed that the ACC's involvement must have been approved. The evidence is unsatisfactory in this regard.

361 The ACC did not assign any of its staff to investigate the claims of foreign bribery by Securency. 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.

362 The AFP were also contacted about the foreign bribery allegations in May 2009 by Robert Rankin, the Chairman of the Securency board. That occurred because he learned that The Age newspaper was intending to publish an article alleging that Securency had been involved in bribing foreign officials. Rankin asked the AFP to investigate the allegations.

363 In late May 2009, the AFP formally commenced Operation Rune. Ken McDermott was appointed as the lead investigator. Initially, Operation Rune was a broad-ranging investigation, which concerned the culture within Securency and focussed on the company's activities.

364 On 9 June 2009, a meeting was held between members of the AFP and ACC to discuss the "proposed" joint investigation into Securency 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 Securency, and reiterated its offer to make its coercive powers available to the AFP to pursue "agreed lines of enquiry".

365 On 10 June 2009, the term of the financial crimes determination was extended for another year. There was no amendment to include foreign bribery in the relevant criminal activities covered by the determination.

366 By July 2009, AFP officers had met with representatives of Securency, including Curtis and Ellery, on a number of occasions. Securency had voluntarily provided the AFP with substantial documents and hard drive material, to assist with the AFP's investigation.

367 According to the AFP's major investigation plan dated 21 July 2009, the AFP had approached the ACC, who had indicated that they would be prepared to assist the AFP in their investigation through the financial crimes determination. At that stage, it was foreshadowed that ACC coercive hearings may be used, in circumstances where it was perceived that current Securency senior executives had knowledge of corrupt practices.

368 By October 2009, the ACC had confirmed to the AFP that it was prepared to assist Operation Rune by holding examinations.

369 On 6 November 2009, a meeting was held at the ACC's Melbourne office, attended by McDermott and ACC staff (Bullock, Ayres and Cohen). At that meeting, a tentative timetable for the examinations was set. It was foreshadowed that the witnesses called to the hearings would be Securency employees and managers believed to have knowledge of the payments made to agents. The suspect was said to be Securency, and all employees were to be viewed as witnesses, not suspects.

370 Shortly after that meeting, Pike replaced McDermott as the lead investigator for the Operation Rune investigation, with the title of Senior Investigating Officer ("SIO"). On the same day as Pike was appointed to lead the investigation, the AFP Commissioner (who was also Chair of the ACC board) gave Operation Rune his approval to use the ACC's coercive examination power.

371 In an email to Justine Saunders (AFP National Manager of Economic and Special Operations) shortly after Pike's appointment, McDermott resigned from the Operation Rune team. In that email, McDermott questioned the management instructions on which Pike was basing his "adversarial and confrontational" dealings with him. He described Pike's approach to the investigation as "command-centred" and "officious".

372 The ACC accused submit that it is not unreasonable to conclude that Operation Rune, with its political implications, had been given to Pike because of a dissatisfaction from "on-high" with McDermott's less aggressive approach to the investigation. There is no evidence from those who appointed Pike as to the reasons for his appointment, and it is not possible for me to make such a finding on the evidence before me. However, the ACC accused's submission is certainly not inconsistent with the approach that prevailed after Pike's appointment.

373 By January 2010, the planning for the examinations program was advancing. On 13 January 2010, McDermott expressed doubts that the money laundering determination covered the investigation of foreign bribery. However, Pike and the various ACC staff held no such concerns.

374 By February 2010, Operation Rune was beginning to look at NPA, as well as Securency, especially in Malaysia.

375 In February 2010, Pike confirmed in an internal AFP minute that:

The AFP has engaged the Australian Crime Commission (ACC) in relation to Operation Rune 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.

376 On 12 March 2010, in a meeting between AFP and ACC staff, it was determined that no joint agency agreement between the AFP and ACC was required, as the examinations to be conducted by the ACC could take place under the existing memorandum of understanding and practical guidelines.

377 On 9 June 2010, the money laundering determination was made. Once again, foreign bribery was not included in the list of relevant criminal activities.

378 I have mentioned the fact that foreign bribery was never included in any of the determination documents during the relevant period, as it illustrates the fact that it was not a type of criminal activity that seems to have been at the forefront of the ACC's concerns.

379 The documentary and oral evidence as to whether the relevant people within the ACC and AFP regarded what was happening as an AFP investigation, or a joint AFP/ACC investigation, is contradictory and confusing.

380 GOC documents sometimes referred to it as a "joint investigation with the AFP", sometimes as "an AFP investigation".

381 The ACC fact statements in support of the summons applications for Wong and Hutchinson described Project Saintly as "a joint investigation" with the AFP. In contrast, the equivalent documents for Brady and Leckenby used no such terminology, referring to two separate investigations being conducted by the ACC and AFP.

382 Dines, the HOD for the financial crimes determination, had very little memory of relevant events. He said he could not recall the precise scope of Project Agrale, and had no independent recollection of the Securency investigation.

383 Deakin, the HOD for the money laundering determination, said the purpose of Project Saintly (which was established by September 2010) was to provide Operation Rune with the ACC's examination powers, in circumstances where the examiner approved the examinations. Although she described it is a joint operation, she agreed that holding the examinations was the extent of the ACC's participation in the investigation.

384 Ayres was the ACC legal officer who prepared many of the legal submissions in support of the summons applications. He said that he, Cohen, Bonnici, and any administrative staff at the ACC, were simply facilitating the questioning requested by the AFP. Ayres said the ACC was conducting the examinations for the AFP, and the ACC was not conducting any separate investigation in relation to the matter. This was the only time Ayres had conducted examinations for another agency. Ayres said that in all other examinations with which he had been involved, the ACC itself was conducting an investigation.

385 Bonnici confirmed that the ACC's role was limited to conducting the coercive examinations, and said there was no other ACC investigation on foot. He described the ACC as being a part of the investigation, albeit a junior member.

386 Cohen said that the only relevant work being done by the ACC in 2010 was to provide its examination powers to the AFP for Operation Rune. Although Cohen's job title was "Intelligence Analyst", his role in relation to these examinations involved no more than providing the AFP with generic template documents for them to complete, as well as cutting and pasting as appropriate from AFP documents in order to complete the summons application documents. He was working on other projects at the time, and said that Project Saintly did not take a "large chunk" of his time.

387 At all relevant times during 2010, there were no ACC staff working on any investigation into the Securency/NPA foreign bribery allegations, other than in connection with the examination program requested by the AFP. The sole resources dedicated to that program by the ACC were the provision of the examination powers, and the limited administrative support required for those powers to be exercised.

388 As far as the AFP was concerned, Pike said that 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."

389 Pike also said that it was he, rather than Sage, Bonnici, or anyone else at the ACC, who was responsible for the final decision as to whether someone would be examined.

390 The CDPP points out that Sage was the final arbiter of who would be called, irrespective of Pike's belief as to who made the final decision. The CDPP refers to an important AFP document headed "ACC Coercive Examinations - Information for Investigators" ("the AFP Examinations Guide"), which states that "the AFP does not decide whether a person is examined or not", and outlines the three stage process whereby the GOC, HOD, and finally, the examiner, make that decision. As a matter of law, it is undoubtedly correct to say that the ultimate decision was Sage's. But there is simply no evidence that Sage exercised any independent judgment in relation to who would be examined, or that he did anything other than "rubber stamp" the AFP's requests. As a matter of practical reality, Pike was quite accurate to say that he was the person who effectively decided whether someone would be examined.

391 From time to time throughout the examination process, the AFP kept the ACC up to date with the progress of the Operation Rune investigation.

392 Upon completion of the examinations at the end of 2010, the OCMC reported that:

The key objective of this project was to provide examination and other support to the ongoing AFP investigation. Examinations have now been completed and it is unlikely that further support will be required. The project can be closed once AFP confirmation is received and a review report written.

393 Similarly, the Project Saintly report dated March 2011 stated that the ACC had been "assisting the AFP Operation Rune via the provision of an examinations program for key witnesses".

394 There is no evidence that the ACC did anything further in relation to the examinations, apart from providing copies of examination materials to the AFP and CDPP, whenever requested by them, as permitted by the s 25A(9) non-publication directions made by Sage.

395 At no stage, after the referral of the investigation to the AFP in April 2009, was the ACC actually conducting any investigation of its own. As will be discussed later in these reasons, the ACC simply acted as a facility for the AFP to cross-examine under oath whoever the AFP wished, for the AFP's own purposes. Given the way in which Sage exercised his powers, in reality it was the AFP who determined - within the window of time that the ACC provided - who would be examined and when. Sage also merely rubber stamped the AFP's requests, as to which members of the AFP would be in attendance, and to whom dissemination of examination material would be made.

396 An examiner may conduct an examination "for the purposes of" a special ACC operation or investigation.[246] An examiner's power to summon a witness and take evidence is not exercisable "except for the purposes of" a special ACC operation or investigation.[247]

397 The ACC accused submit that even if a special ACC investigation was being conducted, Sage did not examine or summon them for the purposes of that investigation.

398 The relevant subject matter of both of the determinations was money laundering, not foreign bribery. As will be discussed shortly, the various documents which were presented to Sage for his consideration, prior to the issue of each of the summonses, all said that the relevant criminal activity to be investigated was money laundering. In fact, the ACC accused were not asked a single question about money laundering in their examinations.

399 However, money laundering is an offence that is based on the existence of a predicate offence; in this case the relevant predicate offence is foreign bribery. The ACC accused did not suggest that Sage was acting for an improper purpose, in examining them about the predicate offence. Nor was it put to Sage that he was acting in bad faith, because he never intended to conduct examinations in relation to money laundering.

400 Instead, the ACC accused allege that Sage summoned or examined them for one or more of the following purposes:

(a) To lock the ACC accused on oath into a version of events, which would assist the AFP to assemble a case against them, arm the prosecution with that knowledge, and thereby prejudice their capacity to defend themselves at trial; and/or

(b) To place pressure on the ACC accused to confess, and then to plead guilty and give evidence against each other in future prosecutions. Whilst it was not always clear, it seemed that this was a complaint about pressure being applied both within, and outside of, the ACC hearing room.[248]

401 The ACC accused say that those purposes were improper, and that Sage knew or should have known them to be so.

402 The CDPP and the ACC deny that there was any improper purpose. In particular, they say that a "locked in" version of events is a necessary consequence of any coercive examination, and an intended consequence of the ACC Act (which abrogates the privilege against self-incrimination, prohibits direct use, but permits derivative use).

403 The relevant legal principles are not contentious. A statutory power must be exercised for the purpose for which it was conferred. If the power is exercised for more than one purpose, where one of those purposes is improper, the exercise of the power will be vitiated if the improper purpose was a substantial purpose (in the sense that the decision would not have been made but for the improper purpose).[249]

404 An improper purpose will not lightly be inferred and, by application of the presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power.[250]

405 As Sage was the person exercising the statutory powers, it is only his purposes that are legally relevant here. However, I will briefly consider the objectives of the examinations, from the perspective of the AFP and ACC staff, in so far as that may affect Sage's knowledge or purposes.

406 The AFP Examinations Guide included in the list of examination objectives "Lock witness into version of events to prevent witness providing alternative version of events if called as a witness for the Defence in any future prosecution".

407 Pike agreed that one of the advantages of ACC examinations was that a suspect can be locked into a version of events on oath, which can potentially be of assistance in later proceedings involving that suspect. He said that a benefit of examinations was that "[examinees] can't with any credibility produce a contrary version of events in their own prosecution."

408 In an AFP minute dated 20 January 2011, Pike said of the late 2010 examinations:

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.

409 The various AFP witnesses either agreed, or did not dispute, that locking witnesses in on oath was one of the AFP's purposes in bringing people before the ACC. They saw nothing wrong with locking a witness in, even if the witness was clearly a suspect.

410 Pike's evidence as to whether or not the AFP wanted to use the examinations to pressure the ACC accused to confess their guilt was, at times, inconsistent and confusing. On the one hand, Pike said that to the extent that an examinee had something to admit, "we wanted them to admit it at the ACC." However, at other times, Pike denied that the purpose of bringing the ACC accused before the ACC was to obtain admissions from them.

411 Pike undoubtedly wanted the ACC accused to make statements or ROIs after their ACC examinations, in order to put their evidence into admissible form for use in future prosecutions. But he denied that any pressure that the AFP applied in that regard was improper.

412 In any event, Pike's view of the purpose of the examination is not determinative as to whether the examinations were conducted for an improper purpose in terms of statutory legality.

413 As far as the purpose of the examinations of the ACC accused was concerned, at times the various ACC staff members gave evidence which was inconsistent with each other, or with Pike.

414 Cohen's evidence aligned most closely with Pike's evidence. Cohen said that one potential aspect of the ACC examinations was to lock suspects in, on oath, to a version of events concerning their suspected offending. He also conceded that one of the desired outcomes of the examinations was for the witness or suspect to cooperate with the AFP, as a result of pressure applied during the examination.

415 Ayres could not recall, but did not deny, that the plan as agreed between himself and AFP officers could have been to use the examinations to pressure witnesses or suspects into complying with requests from the AFP.

416 In early 2010, Ayres understood that locking a suspect into a version of events on oath at an ACC examination would be forensically advantageous to investigators and prosecutors. But he did not recall the phrase "lock in" being used, and had not thought of the examinations of the Operation Rune witnesses in those terms.

417 Before the start of the ACC examination process, Ayres had advised the AFP that there would be no problem if a witness dealt directly with the AFP, and voluntarily provided a statement, as a result of an ACC examination.

418 Ayres said that one possible outcome of the examinations was that someone would be given immunity from prosecution, on the basis that they would help or give evidence to assist the prosecution. Ayres said that it would not be a proper exercise of the ACC's coercive powers to summon suspects for the purpose of putting pressure on them to provide statements to the AFP. However, he agreed that the provision of a statement to the AFP may be a collateral advantage of an examination.

419 Bonnici said that the primary purpose of the ACC examinations was to find out what had happened, and what the examinees knew.

420 Bonnici said he hoped the examinations would be a trigger for further enquiries to be made, but not a trigger for suspects to make admissions against interest.

421 Bonnici also denied that the practice that was in fact adopted, of approaching witnesses during a break in their examinations and admonishing them to tell the truth, was designed to put pressure on them to change their evidence and make admissions. He said its purpose was just to test the reliability of their evidence.

422 It is not necessary to go into more detail, or make findings, as to what the ACC staff understood the purpose of the examinations to be, as it is Sage's purpose that is relevant here. But in this, as in many other areas, Bonnici gave evidence that was far more defensive about the ACC's conduct than that of Ayres and Cohen.

423 Sage agreed that, from November 2010 at the latest, he knew that the AFP's objective in the ACC examinations was to get people to make admissions. Regarding his own objective as examiner, 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.

424 At one stage, Sage agreed that it was a shared objective of the AFP and the ACC that people who had been examined would, after their examination, co-operate with the AFP, make statements and give evidence against other suspects. However, later in his evidence, Sage "clarified" that his purpose was for examinees to cooperate in the examination, not with the AFP.

425 Sage denied that he asked Bonnici to approach Leckenby after his examination, in order to get Leckenby to make a statement to the AFP. However, Sage conceded that he refrained from including the CDPP in Leckenby's non-publication direction at the conclusion of his examination, in order to give the AFP an opportunity to take a statement from Leckenby. He clearly wanted to assist the AFP in that regard.

426 One of the AFP's purposes in conducting the examinations of Hutchinson and Wong was to trigger them into making admissions, on oath, and thereby lock them into a version of events. Sage knew that this was the AFP's objective, at least in relation to Wong and Hutchinson's examinations. He made no such concession for Leckenby and Brady.

427 It is a necessary incident of giving evidence under compulsion at such an examination that an examinee will be locked in, to some extent, to the account given. In that sense, consideration of whether it was understood that the ACC accused would be locked into a version of events does not assist in determining whether the examinations were held for an improper purpose. Locking in may not be a problem in itself, provided that appropriate measures are taken to ensure that protective provisions, designed to protect a witness' right to a fair trial, are utilised appropriately.

428 Although Sage was aware of the AFP's various purposes (to the extent described above), 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. However, his knowledge of those matters should have caused him to be especially diligent, in deciding how to exercise and discharge his powers and obligations under s 25A.

429 The ACC accused originally argued that the ACC Act does not authorise the examination of suspects in relation to their own alleged offending. That argument was based on the reasoning of the majority in X7(1), and the court in Lee(2). They sought to have the proceedings permanently stayed, on the basis that each of them was a suspect at the time of their examination, and therefore should not have been examined about their own conduct.

430 A very substantial amount of time was spent cross-examining AFP and ACC witnesses about the progress of the Operation Rune investigation, and their understanding of the status of the ACC accused, at the relevant times. Witnesses gave evidence about whether they understood the ACC accused fell into the category of protected suspects, suspects, persons likely to be charged, or some other category. Detailed written submissions were also provided, which addressed both the factual and legal dimensions of that argument. Then, in the course of oral submissions, the ACC accused formally abandoned the argument.

431 That did not mean that the evidence became irrelevant altogether. What the AFP, the ACC staff and the examiner knew about the possibility or likelihood of the ACC accused being charged is relevant to a number of other issues raised on the ACC application. It is particularly relevant to the questions of who should have been permitted to attend the examinations, and what non-publication orders should have been made by the examiner.

432 The evidence about the status of the ACC accused was also very important to the credit attacks on two of the key witnesses, Bonnici and Pike. At the time of their evidence, both of those witnesses were facing criticism of their respective involvement in the examination of suspects; that led them to going to sometimes extraordinary and implausible lengths to dispute that the ACC accused were, or were understood to be, suspects of a particular type.

433 The evidence relevant to those issues will be discussed later in these reasons. It is sufficient to note for present purposes that, by the time of their examinations, the ACC accused had all been offered cautioned ROIs by the AFP; some had also been offered a sentencing discount if they pleaded guilty. They were all regarded as suspects by Pike and the relevant AFP officers at that time. Sage was aware of those matters too. Most importantly, they were all clearly persons who "may be charged", for the purposes of s 25A(9).

434 Much time was spent examining key witnesses about the AFP Examinations Guide, which recorded the AFP's understanding of the ACC's practice in relation to compulsory examinations. The ACC accused sought to establish that the AFP deliberately failed to comply with their own guidelines.

435 Although the ACC referred to it as a draft document, that is an inaccurate description. It was an interim document, in the sense that it was a document which developed over time; but it was operative. The AFP Examinations Guide that was before the court was current at the time of the examinations of the ACC accused.[251]

436 On the first page, under the heading "Issues surrounding the examination process" were two bullet points that attracted a lot of attention during this hearing:

- the ACC will not examine a witness directly about their own criminal offending. The exception to this is where the person has pleaded guilty and is not yet sentenced, or is currently serving a sentence.

- if a person is to be charged with a criminal offence, or there is considered to be sufficient evidence to ground the laying of a criminal charge (prima facie), the ACC is unlikely to examine that witness. In all such cases the ACC and the relevant Examiner should be advised ASAP to discuss available options.

437 Even though it was not a document that was legally binding on ACC staff or examiners, Sage and Bonnici both agreed that those two bullet points reflected the ACC's practice at the relevant time.

438 That said, there seems to have been no clear understanding between the various witnesses as to what the two bullet points meant. For example, Deakin understood that the first bullet point only referred to people who had already been charged, which is why there was a "carve out" for a particular subset of that group. Others thought it applied to all witnesses, no matter what their status. For the AFP officers, the Guide's meaning was subsumed by advice they had received from the ACC (in particular, from Sage himself) that suspects could be examined about their own wrongdoing.

439 Given those differing interpretations of the bullet points, I am not in a position on the evidence to conclude that the AFP clearly ignored their own guidelines, in seeking to have the ACC accused examined about their own wrongdoing.

440 The ACC accused also complain about the circumstances in which they came to learn of the existence of those two bullet points. When the AFP Examinations Guide was first produced to the ACC accused, it was very heavily redacted. Over a number of days, several less redacted versions were produced voluntarily, before a version that disclosed the two bullet points was finally produced.

441 The ACC accused sought, unsuccessfully, to establish through cross-examination that Bonnici had played a role in the decision to redact those bullet points.

442 Documents were later produced to the court, which showed that both the ACC and the AFP had been involved in the redaction process, and that the redactions had been made (at least to some extent) on the basis of legal advice.

443 Accordingly, the suggestion that Bonnici himself was involved in deliberately withholding material from the ACC accused failed. However, what happened in relation to the redactions is nevertheless unexplained and troubling. There was no legitimate basis for redacting those two bullet points. They were clearly relevant, as they were central to an issue that was at the heart of the ACC accused's case at that time. On the available evidence, I am not able to determine whether the decision to redact was made as a result of an honest error of judgment, or a dishonest decision to withhold apparently harmful material.

444 Either possibility is of concern, given the substantial evidentiary difficulties facing the ACC accused in an application such as this. For example, after upholding the AFP's and CDPP's argument that s 123 of the Evidence Act had not abrogated their claims to legal privilege, the Court of Appeal made the following observation in Galloway:

As noted earlier, the stay applications are based on allegations of investigative and prosecutorial illegality, malpractice and/or unfairness. If the CDPP (or the AFP) had knowledge of any circumstances, or had possession of any documents or information, which substantiated any such allegation, [they] would be obliged to disclose those matters irrespective of any questions of privilege.[252]

445 That observation raises practical problems in a case such as this. First, it is clear in this case that there is a vast gulf between what is perceived to be malpractice or unfairness by the AFP and CDPP on the one hand, and by the ACC accused on the other. Accordingly, whether or not a document substantiates an allegation of malpractice or unfairness (and therefore ought to be disclosed to the ACC accused, notwithstanding any claim for privilege) is likely to be highly contestable.

446 Secondly, it leaves it to the AFP and CDPP to make the judgement call as to what they should disclose in that regard. That is of some concern, given the lack of any proper explanation as to why those two critical bullet points were redacted.

447 I have explained why the ACC accused's argument that they were summoned for an improper purpose cannot be upheld. They do not allege any other illegality in relation to their summoning before the ACC. However, they make the following complaints about that matter.

448 The following general procedure was adopted in the case of each of the ACC accused:

(a) The AFP would discuss with the ACC staff who they wished to have examined in the relevant round of examinations. This involved a mixture of oral and written communications, including the provision of updated spreadsheets of proposed witnesses. The spreadsheets noted whether the witness was classified as "A", "B" or "C", with "A" class persons being suspected by the AFP of being more centrally involved, and "C" class persons being less involved.[253]

(b) The AFP would provide to the relevant ACC staff one or more witness summaries and/or briefing papers for each proposed witness, to enable them to start preparing the following documents, which were to be provided to Sage: a draft summons, statement of facts and circumstances ("fact statement"), and legal submissions;

(c) An ACC staff member (usually Cohen or Bonnici) would prepare the fact statement, generally by simply cutting and pasting from the documents provided by the AFP. For the ACC accused, the fact statements ranged in length from 11 to 14 pages each. The fact statement would be signed by the relevant HOD;

(d) An ACC in-house lawyer (usually Ayres or Bonnici) would prepare and sign the legal submissions. These were virtually identical to each other, save for the last page (which referred to the specific witness);

(e) ACC staff would provide the draft summons, fact statement and legal submissions to Sage, who would issue the summons and his reasons within a very short period of time thereafter.

449 Pike said he had decided that if the ACC accused would not voluntarily answer AFP questions, he would take advantage of the coercive powers of the ACC to force them to answer questions. Sage said he may well have been aware that that was the AFP strategy, but described it as "not unusual."

450 The ACC accused criticise what happened in relation to the issuing of summonses. First, they complain that they were deliberately subjected to coercive questioning, because they had exercised their rights to decline a cautioned police interview. Secondly, they accuse Bonnici of deliberately concealing from Sage the fact that Wong and Hutchinson were clearly regarded as suspects.

451 They also argue that what happened in relation to the issuing of summonses demonstrates the extent to which Sage was just rubber stamping whatever the AFP wanted.

452 The summonses to the ACC accused were issued in the following circumstances.

453 By 9 February 2010, the AFP had informed the ACC that Brady was a likely witness. Although he was initially classified by the AFP as a "B" class witness, by early March he had been reclassified as an "A" class witness.

454 On 30 March, Maddigan emailed Ayres and Cohen briefing papers to support the applications for summonses for Brady and Leckenby. By this time, the AFP clearly suspected Brady of being involved in bribing Malaysian bank officials, and had informed ACC staff of that fact.

455 At 11.30 am on 6 April 2010, Renwick telephoned Brady and advised him that the AFP wanted to conduct a formal ROI with him. Renwick's case note recorded:

BRADY was advised that the interview would take place under Criminal Caution and that he was not obliged to participate in the interview. BRADY was also advised that he may seek legal advice on whether to participate in the ROI.

BRADY advised that he had not previously spoken to the AFP in relation to this matter and would like some time to consider the request/speak with a legal representative.

BRADY further advised that he would contact the undersigned as soon as possible and advise on whether he wished to participate in the ROI.

456 On that very same day, Dines signed the fact statement, and Ayres signed the legal submissions, in support of the issue of a summons to Brady.

457 Sage issued the summons to Brady on the afternoon of 7 April, in the circumstances discussed below.[254] By that time, Sage had not been told anything about whether or not Brady had been asked to participate in an ROI.

458 In fact, as at the time of issue of the summons, Brady had not yet advised the AFP whether or not he would agree to participate in an ROI.

459 By early 2010, Leckenby had been identified by the AFP as an "A" class witness.

460 In the case of Leckenby, the fact statement and legal submissions had been prepared and signed by ACC staff before Leckenby had even been asked to attend an ROI with the AFP. Those documents were both signed on 6 April 2010.

461 On the morning of 7 April, Ustinov telephoned Leckenby and asked him to attend AFP headquarters to take part in an ROI.

462 There is a discrepancy between Ustinov's handwritten diary note and typed case note of that phone call. His diary note records that Leckenby "states he is not able to attend for an interview until next week." On the other hand, his typed case note entry, which was created later than the diary note (although the precise date of creation was not established), records that Leckenby "stated he was unavailable to attend any location to liaise with AFP investigators nor could he commit to a set date in the future."

463 In his witness statement, Ustinov only referred to the case note, and made no mention of the conflicting diary entry.

464 In his oral evidence, Ustinov was unable to provide a satisfactory explanation as to the clear discrepancy between his two versions of Leckenby's response to the request to take part in an ROI.

465 It was the case note entry version which made it into the briefing note to the ACC. However, that was only provided by the AFP after Sage had issued the summons.

466 At 2.17 pm on 7 April, Ayres sent Sage's assistant the Leckenby and Brady fact statements and legal submissions, for Sage's consideration. Between 3.00 pm and 3.20 pm that day, Sage issued both of their summonses and recorded two sets of reasons for doing so.

467 AFP officers spoke to Wong a number of times in early 2010, but not in cautioned interviews. In March and May 2010, they obtained two critical documents, which they regarded as highly incriminating of Wong. One of those documents was a confidential fax dated 25 February 2000, apparently sent from Wong to Leckenby, and relating to an "inflated price" that was to be paid in Nepal ("the Nepal fax").

468 As the Nepal fax forms a critical part of the prosecution case in Nepal, it is convenient to explain its contents here. It refers to a suggestion by the Nepalese agent, and a senior Nepalese bank official, that the banknote contract price be "INFLATED", with the additional amount to be allocated by them to "others". Wong said in the fax that he would be preparing a formal reply "with the inflated price". The Nepal fax had originally been drafted as an email to Leckenby and Hutchinson, which was to be copied to Brady; however, Wong told Leckenby that he had decided not to send it by email.

469 By mid-2010, all of the relevant AFP and CDPP staff clearly were of the opinion that Wong 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, Pike communicated with Wong's lawyer about a possible sentencing discount that might be available to him.

470 On 9 November, Maddigan provided a 1½ page witness summary for Wong to Cohen and Bonnici, which relevantly stated that Wong had been "offered a criminal interview" but had refused to be interviewed further. The next day, she provided the ACC with a 10½ page comprehensive briefing paper for Wong; the briefing paper made no mention of the fact that Wong had been offered a criminal interview.

471 On 15 November, Deakin signed a fact statement, and Bonnici signed the legal submissions, for Wong. The fact statement made no mention of any criminal interview. Rather, it stated that Wong was to have been summoned in the earlier round of examinations, "but the AFP decided to approach him to speak to them further and the summons was never issued. However, he has declined to speak further to AFP investigators." That text had been prepared by Bonnici.

472 The ACC accused allege that Bonnici dishonestly edited out the reference to Wong having been offered a criminal interview, when he prepared the fact statement, in order to conceal from Sage the fact that the AFP regarded Wong as a suspect. I am not able to make any such finding, for the following reasons.

473 Much of what was contained in the fact statement had clearly been cut and pasted from the witness summary and/or the comprehensive briefing paper, the introductory parts to which were almost identical to each other. There were a few additional words in the fact statement, which had not come from either document.

474 In cross-examination, Bonnici was only shown the witness summary. He acceded to the suggestion that it was the document from which he had cut and pasted. Based on that answer, it was put to him that he had deliberately withheld from Sage information about the criminal interview offer. Bonnici expressed surprise at the omission, and was unable to offer any explanation for why it might have occurred.

475 Unfortunately, neither the cross-examiner, nor the re-examiner, took Bonnici to the comprehensive briefing paper, which made no mention of the criminal interview offer.[255] Accordingly, at no time was Bonnici asked which of the witness summary and briefing paper he had relied upon. Given that he had prepared the fact statement some five years earlier, and would have prepared hundreds of such documents in the intervening period, I would not expect him to have recalled from memory alone that there were two possible source documents for that particular fact statement.

476 If the briefing paper was the only document from which Bonnici had cut and pasted, there could have been no allegation of deliberately withholding information from Sage.

477 There is some evidence to suggest that Bonnici might have prepared the fact statement from the briefing paper: Wong's date of birth appeared in the fact statement and the comprehensive briefing paper, but not in the witness summary. But it is also possible that the date of birth was provided from some other source document.

478 The state of the evidence on this matter is unsatisfactory. In the circumstances, I am not in a position to find that Bonnici deliberately withheld from Sage the fact that Wong had been offered a criminal interview, prior to the issue of the summons.

479 Sage issued the Wong summons on 17 November, together with the Hutchinson summons.

480 At least by early August 2010, Hutchinson was regarded by the AFP as a suspect who was likely to be charged. An AFP briefing paper to the ACC dated 6 August 2010 described him as one of the "main suspects" in relation to Indonesia.

481 On 3 September, Pike travelled to Hutchinson's home and offered him a cautioned interview in relation to determining his criminal involvement in the offences of foreign bribery. The following week, Pike met with Hutchinson's lawyer, and sought Hutchinson's co-operation, in return for a sentencing discount.

482 On 9 November, Maddigan sent Cohen and Bonnici an updated briefing paper, which continued to describe Hutchinson as one of the six main suspects in relation to Indonesia.

483 On 10 November, Maddigan sent Cohen and Bonnici the witness summary for Hutchinson. The witness summary recorded that, in September 2010, investigators had asked Hutchinson to participate in "a formal interview", and he "later declined to participate."

484 On 16 November, Deakin signed the fact statement, and Bonnici signed the legal submissions, for Hutchinson. The fact statement noted that Hutchinson had declined to participate in "a formal interview"; there was no mention of his status as a main suspect.

485 The ACC accused allege that Bonnici dishonestly edited out the reference to Hutchinson being a "main suspect", when he prepared the fact statement, in order to conceal that fact from Sage.

486 Unlike the case with Wong's fact statement, there were not two possible source documents. The relevant part of the Hutchinson fact statement is almost identical to the witness summary. Apart from the omission of the list of main suspects, the handful of differences between the two documents were trivial and mostly stylistic.[256] The omission of the list of six main suspects was neither trivial nor stylistic.

487 Bonnici agreed the omission had been deliberate (in the sense of not being accidental), but said he could not explain why it had occurred. He denied that he was trying to hide anything from Sage.

488 Even if Bonnici was deliberately trying to limit Sage's understanding of the situation, in the case of Hutchinson (unlike Wong), Sage was at least informed prior to the issue of the summons that he had refused to participate in "a formal interview".

489 On the morning of 17 November, Sage issued the Wong and Hutchinson summonses and reasons within a period of one and a half hours.

490 An examiner may summon a person to appear at an examination to give evidence and produce specified documents, if the examiner is satisfied that it is "reasonable in all the circumstances to do so."[257] In his reasons for issuing each summons, Sage stated that he was satisfied that it was reasonable in all the circumstances to do so. It was not suggested to Sage that he was not in fact satisfied that it was reasonable to do so.

491 Section 28A(3) requires the summons to set out, as far as is reasonably practicable, "the general nature of the matters in relation to which the person is to be questioned", unless the examiner is satisfied that it would prejudice the special investigation or operation to do so.

492 In the case of each of the ACC accused, their summons said that they would be asked to give evidence of:

federally relevant criminal activity that may have been committed since 1 January 1995 by certain persons in concert with one another, namely

• money laundering within the meaning of the Proceeds of Crime Act 1987; and

• 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 1995.

493 There was no mention of Securency, NPA, foreign bribery, or anything to do with the circumstances of these alleged offences.

494 In separate documents, which were not provided to the ACC accused with their summons, Sage recorded that he was satisfied that it would prejudice the effectiveness of the special ACC investigation for the respective summons to state, beyond what it did, the general nature of the matters to be examined.

495 Attached to each summons was a copy of the relevant ACC board determination, as required by s 28(2).

496 The ACC accused do not allege any failure to comply with these statutory requirements.

497 Section 28(1A) of the ACC Act requires an examiner to record in writing the reasons for issuing a summons. That record is to be made before, or at the same time as, the issue of the summons. There is no requirement to provide a copy of the reasons to the witness, or to otherwise enlighten the witness as to why they have been summoned.[258] The examiner's reasons are also irrelevant to the scope of the examination which may be validly undertaken.[259]

498 In the case of each of the ACC accused, Sage did prepare and record written reasons for issuing the summons, which he signed a few minutes before he issued the summons. There is no suggestion that he breached s 28(1A).

499 However, the ACC accused say that Sage did not give proper consideration to the question of whether the summonses should be issued; they say that he merely rubber stamped the AFP's requests.

500 The ACC accused were not the first Securency or NPA witnesses to be compulsorily examined. By the time he came to issue the summonses to Brady and Leckenby, Sage had already summoned and examined six witnesses. Accordingly, he had some familiarity with the factual material that underlay Operation Rune. I accept that it therefore would not have taken him as long to read and understand the later summons application documents.

501 That said, very little deliberation could have attended the decisions to issue the summonses, because of the speed with which Sage dealt with them. For example, in relation to the Brady and Leckenby summonses, Sage had no more than an hour to consider the supporting documents, consider whether the form of summons was appropriate, consider whether the summonses ought to be accompanied by non-disclosure obligations, and then prepare his reasons for issuing the summonses (as well as the ss 28(3) and 29A statements). He did the equivalent exercise for Wong and Hutchinson in a total of about an hour and a half.

502 Sage acknowledged that his reasons were created wholly (in the case of Hutchinson), or substantially, by cutting and pasting material from the fact statements and legal submissions, which had been provided to him. As already discussed, those fact statements had, in turn, been largely cut and pasted from AFP documents.

503 The ACC accused point to a few examples of careless drafting by Sage, in which he had inappropriately cut and pasted things from AFP briefing papers and ACC fact statements. That is not surprising, given the speed with which he prepared his reasons. However, none of the examples given were of great significance.

504 There is nothing in the ACC Act that would preclude an examiner from cutting and pasting from documents prepared by others, in an appropriate case. However, the examiner must still turn their own mind to the appropriateness of including and relying on material supplied by others.

505 Sage was well aware of the comments made by Jessup J in ABC v Sage, that the purpose of the requirement to give reasons was "to focus and enhance decision making and to provide an accountability mechanism by requiring the creation of an 'audit trail'."[260]

506 Furthermore, over the course of the year preceding the examinations of the ACC accused, there had been a number of Federal Court decisions (including two Full Federal Court decisions) in which judges had criticised ACC examiners for "unacceptable brevity"[261] or using "formulaic statements of satisfaction"[262] in their reasons.

507 Sage should have been well aware of the need for an examiner to bring a careful and independent mind to the task of considering, and giving reasons for, issuing the summonses.

508 It is difficult to see how Sage could act as an effective gatekeeper or custodian, given his workload. Sage said that in a normal year, he would undertake more than 300 examinations; in a busy year, it would be more than 400. Those examinations might be spread across more than 10 different ACC projects, and across different locations. For most of those examinations, Sage would have been the examiner who issued the summons. Sometimes, he also issued summonses for examinations that were undertaken by others. The sheer scale of that task no doubt explains why Sage's reasons consisted almost entirely of material that had been cut and pasted from documents prepared by others. But that does not absolve him of the responsibility to act independently and diligently, in the exercise of his examination powers.

509 It is clear that the relevant AFP and ACC staff expected that Sage would automatically approve all the examination requests put before him. And that is what he in fact did, without questioning the appropriateness of any of the requests.

The status of the ACC accused before and during their examinations

510 Before each examination, Sage and Bonnici were provided with comprehensive AFP briefing papers for each of the ACC accused. This was in addition to whatever materials they had seen prior to the issue of the summons, and any oral briefing they had received from the AFP.

511 Both Sage and Bonnici said it was their practice to read the AFP briefing papers provided to them, before conducting an examination. Sage also said that he "only considered what was put before [him] and what was told to [him]". His reliance on counsel assisting, and the accuracy and completeness of AFP and ACC materials, was evident.

512 Sage said he was reliant on counsel assisting to inform him of any intent to charge someone, and expected counsel assisting to bring it to his attention, or any other relevant information, should it be available.

513 The following is a simplified summary of the very extensive evidence that was led, at a time when the ACC accused were arguing that suspects could not be examined. It is sufficient to demonstrate that, at the time of their examinations, each of the ACC accused was a person who may be charged, and was known by Sage to be such a person.

514 Pike said that at the time of his examination, Brady was a suspect, but not a protected suspect.

515 In a briefing paper to one of his superiors, dated 12 April 2010, Pike wrote that:

the email evidence uncovered to date, when combined with the results of the Malaysian investigation, the anticipated electronic evidence from the NPA database and information being received from witnesses such as Brian Hood, provides investigators with reason to believe charges will be laid in respect of the Malaysian leg of the investigation.

Brady was identified as a suspect in that briefing document, along with Wong and Leckenby.

516 The information contained in the document is reflective of other evidence as to the general understanding of AFP officers concerning the status of Brady, Wong and Leckenby, as suspects in relation to the Malaysian investigation.

517 Sage said that, as at the time of Brady's examination, he was aware that Brady was considered a suspect by the AFP, and understood that there was potential for Brady to be charged with foreign bribery offences.

518 Sage also agreed that he would have been aware, from having read the AFP briefing paper to the ACC, that AFP approaches had been made to Brady to participate in a "taped" ROI.

519 On the other hand, Bonnici asserted that his belief at the time of Brady's examination was that Brady was simply a witness, not a suspect. Bonnici's evidence did not sit well with Sage's evidence. It was also inconsistent with the fact that Bonnici acknowledged that he had read the AFP briefing paper and attached documents (which included, amongst others, the Nepal fax), which noted that Brady had been offered and declined a taped ROI.

520 Prior to his examination, Leckenby had been offered a cautioned ROI.

521 Pike said that prior to his examination on 13 April 2010, Leckenby was a suspect, but not a protected suspect, in relation to Malaysia.

522 As mentioned earlier, Pike's briefing paper of 12 April 2010 indicated that Leckenby was a suspect in relation to Malaysia, and investigators had reason to believe charges would be laid in respect of the Malaysian leg of the investigation.

523 Sage acknowledged he would have been aware of the AFP's suspicions regarding Leckenby's involvement in Malaysia. He also admitted knowing that Leckenby had been contacted by the AFP for a "formal" ROI.

524 Pike agreed that by mid-September 2010, Hutchinson was a suspect in relation to both Nepal and Indonesia.

525 As previously discussed, the fact statement provided to Sage before the issue of Hutchinson's summons had been drafted so as to remove any mention of the fact that Hutchinson was a main suspect. However, by the time of the actual examination, Sage had seen a copy of the AFP briefing paper, showing that Hutchinson was regarded as a main suspect in relation to Indonesia. Sage also knew that Hutchinson had refused to participate in a "formal" interview.

526 Pike's evidence as to what he believed in mid-2010 about Wong's suspect status was confusing and, at times, contradictory. It is not necessary to explore that in any detail. It is clear that by 9 July 2010, Pike regarded it as so likely that Wong would be charged that he briefed the AFP Commissioner to that effect.

527 Pike said he attended Wong's examination for the sole purpose of stopping the examination at the moment Wong began to make admissions of guilt, to try to then get Wong to make a statement or ROI in admissible form. He said he told Bonnici of his purpose before the examination began.

528 Bonnici gave conflicting evidence regarding Wong's status at the time of his examination.

529 Initially, Bonnici said he did not know whether Wong was a suspect or not. Bonnici did not recall being told by an AFP member that Wong was a suspect, nor did he know that Sewell believed that there was a strong case against Wong. Later, after being shown an email sent on 26 October 2010 to a number of persons, including Bonnici, which said that the AFP were considering charging Wong, Bonnici acknowledged that he would have been aware that Wong was a suspect and that the AFP were considering charging him.

530 Bonnici and Sage were both aware from the AFP's briefing paper that Wong had been offered a "criminal interview."

531 The Operation Rune witnesses were examined by the ACC in two rounds. The first round took place in April and May 2010, the second round in November 2010.

532 The examinations of each of the ACC accused occupied many hours. Because the examination questions are not numbered (except in the case of Leckenby), and there are no times recorded on the transcript, I will refer to the number of pages of transcript to indicate the scale of the questioning in each case.

533 Brady was examined on 12 April, without any lawyer being present for him (173 pages of transcript).

534 Leckenby was examined on 13 April, with his barrister present (70 pages). At the end of that hearing, his examination was adjourned to 22 April. It was subsequently further adjourned on several occasions. By late May 2010, a decision had been made not to complete Leckenby's examination, on the basis that he was likely to be charged with offences.

535 Hutchinson's examination began on 24 November (191 pages), and finished on 29 November (125 pages). His barrister was present on both days.

536 Initially, Wong was proposed to be called in the first round, but he was later deferred to the second round, as the AFP wanted to approach him further to see if he would agree to be interviewed. Wong was examined on 30 November 2010, without a lawyer present (207 pages).

537 For the examinations of all of the ACC accused, Sage was the examiner, and Bonnici was counsel assisting. Bonnici asked most of the questions. In general terms, Bonnici asked the ACC accused the questions posed in, and showed them the documents attached to, the relevant AFP briefing papers. There is nothing unlawful, or necessarily improper, in the AFP having drafted the questions; they were more familiar with the material. Sage and Bonnici were not legally constrained to ask questions about the matters suggested by the AFP, although that is what they in fact did.

538 At the start of each of the examinations, Sage read a statement to each of the ACC accused in these, or relevantly similar, terms:

... you've been summonsed today to give evidence in relation to a matter that is mentioned in the summons. It may be that you will be asked questions concerning other matters that have become or may become relevant to the investigation but I anticipate that most of the questions will relate to the subject matter of the summons. The examination will be conducted in private and I direct that the persons whose names appear on a sheet of paper in front of me which I will sign and date with today's date are the only persons who may be present while you are examined.

539 As far as the first part of that statement is concerned, the ACC accused were not in fact examined about the subject matter of the summons, namely, money laundering. The questions they were asked all related to foreign bribery.

540 As far as the second part of that statement is concerned, Sage neither showed the ACC accused, nor read out to them, the list of names on the sheet of paper. Neither Sage nor Bonnici disclosed to the ACC accused that their examinations were being watched from a nearby room by large numbers of AFP officers who were involved in Operation Rune. Nor did they disclose that they had the ability to, and did, communicate electronically during the examinations with investigating AFP officers.

541 The ACC accused make a number of complaints about the legality and fairness of what occurred in their examinations.

Were the AFP officers members of staff of the ACC?

542 The question of whether or not each of the AFP officers who attended the examinations was a "member of staff of the ACC" is relevant to a consideration of some of the provisions I am about to discuss.

543 "Member of staff of the ACC" is defined in s 4(1) of the ACC Act to mean:

(a) a member of the staff referred to in subsection 47(1); or

(b) a person participating in an ACC operation/investigation; or

(c) a member of a task force established by the Board under paragraph 7C(1)(f); or

(d) a person engaged under subsection 48(1);[263] or

(e) a person referred to in section 49 whose services are made available to the ACC;[264] or

(f) a legal practitioner appointed under section 50 to assist the ACC as counsel.

544 The CDPP and ACC submit that the AFP officers fell within paragraph (b) of the definition, as each of them was "a person participating in an ACC operation/investigation".

545 In so far as the ACC accused say that the submission should fail because there was no "ACC operation/investigation" in existence, I reject their argument for the reasons given earlier.[265]

546 It is a separate question whether or not the AFP officers fall within the statutory definition. Unlike in the cases discussed earlier, none of the AFP officers had been seconded to the ACC.

547 In support of their submission, the CDPP and ACC rely upon the following two documents, which were executed by or on behalf of the Commissioner of the AFP, who was also the Chair of the ACC board.

548 The first is an instrument signed on 21 July 2008, which identified that the persons listed in Schedule B were AFP officers "whose duties include providing services in relation to" the financial crimes determination. The persons listed in Schedule B included members of the AFP Economic and Special Operations Teams.

549 A similar instrument was executed on 15 July 2010, in relation to a number of determinations, including the money laundering determination. By that time, the AFP Economic and Special Operations Teams had been renamed the AFP Crime Operations Teams.

550 As Operation Rune was conducted under the auspices of those particular AFP teams, I accept that the AFP officers who were present at the examinations were persons "whose duties include providing services in relation to" the relevant determination. But that is not necessarily synonymous with "participating in an ACC operation/investigation" for the purposes of paragraph (b) of the definition of member of staff of the ACC.

551 Both of the instruments stated that the persons in those teams were being identified "for the purpose of paragraph 3 of Schedule 2" of the respective determination. They did not state that the persons were "members of staff of the ACC".

552 Clause 10 of both determinations said that "Pursuant to paragraph 7C(1)(e) of the [ACC] Act, the classes of persons to participate in the investigation ... are those mentioned in Schedule 2." Schedule 2 listed the following classes of persons:

(b) identified in writing by the CEO, or delegate of the CEO, as a person whose duties include providing services in relation to ACC operations and investigations.

(a) an officer or member of the staff of any of the following agencies:

(b) identified in writing by the head of that agency, or a delegate of that head, as a person whose duties include providing services in relation to ACC operations and investigations.

553 That is to say, Schedule 2 of the determinations drew a clear distinction between members of staff of the ACC (who were dealt with in paragraph 2) and officers or members of staff of other agencies (who were dealt with in paragraph 3). The two instruments do not purport to classify members of the relevant AFP teams as members of staff of the ACC.

554 There are other relevant ACC documents, which will be considered shortly, in which the AFP officers were also not treated as members of ACC staff.

555 That said, the concept of a person "participating in an ACC operation/investigation" is a very broad one. Clause 10 of the determinations does say that the people listed in Schedule 2 can "participate" in the relevant investigation. The words are to be construed according to the language of the statute, not according to any internal ACC interpretation of the statute.

556 I am not aware of any judicial consideration of the meaning of the words.[266]

557 I am prepared to assume, without deciding, that the AFP officers were members of staff of the ACC. At the end of the day, not much turns on that assumption, for reasons that I will explain shortly.

558 Section 25A(3) of the ACC Act provides that an examination must be held in private, and the examiner may give directions as to the persons who may be present during part or all of the examination. Section 25A(4) creates an exception to sub-s (3) for certain legal representatives.

559 Section 25A(5) provides that "a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present" by reason of a direction given under sub-s (3) or by reason of sub-s (4). It is an offence for a person to be present at an examination in contravention of sub-s (5).[267]

560 "Present" is not a defined term in the ACC Act. However, the parties do not dispute, and Sage understood, that persons observing the examination live on a computer screen, either in a nearby room, or elsewhere in the ACC, would be "present" at the examination for the purposes of these provisions.

561 It is clear from the authorities that ss 25A(3) and (9) are both provisions that require unfairness to a potential trial of a person who has been or may be charged, by derivative use of examination material, to be addressed by limiting the people who have access to that material.

562 The examiner is empowered and required by s 25A(3) to control who is present at the examination, and empowered by s 25A(9) to make a non-publication order in respect of any evidence that a person has given. Moreover, the exercise of any other powers regarding the use or dissemination of material under the ACC Act apply, subject to the overriding and mandatory exercise of the s 25A powers to ensure the fairness of a potential trial.

563 Thus, the ACC Act deals with the risk posed by the derivative use of examination material to a fair trial, in respect of people who have been or may be charged with an offence, by controlling access to the examination and the information flowing from it. What is appropriate in a particular case will of course depend upon the circumstances of the person to be examined. Where that person is a suspect who has been requested to participate in, and has refused a cautioned ROI with investigators, little imagination is required to discern the appropriate application of the requirements of s 25A to protect the fairness of the potential trial(s) of those suspects. Investigators and prosecutors must be precluded from access to the examination material.[268]

564 The intention of the statutory scheme is to strike a balance between the interference with the administration of justice and the fair trial of an accused on the one hand, and the public interest in the investigation of federally relevant criminal activity on the other. This intention, and the balancing exercise, is entirely circumvented if police investigating a suspect in the position of the ACC accused not only arrange for the person to be summoned to be examined about the subject matter of prospective charge(s), but also attend the examination, dictate the questioning of the suspect, participate in tactical adjournments and discussions during breaks in the examination, obtain the transcripts of the evidence, and facilitate the provision of the material to the prosecuting agency.

565 The ACC accused make particular complaint about the presence of AFP officers at their examinations, as well as the presence of Ayres at Leckenby's examination.

566 The normal process for Sage to authorise people to be present at an examination was for Cohen to give Sage's executive assistant a list of the names he wanted Sage to approve. In the case of the ACC accused, the lists were created by Cohen combining a list of AFP officers that Maddigan had given to him, with the names of ACC staff known to him. The executive assistant would then prepare an "authority to attend" document ("authority document") for Sage to approve.

567 It seems that the authority documents were drafted by Cohen and Sage's executive assistant as a matter of administrative convenience. But that did not absolve Sage from the responsibility of independently turning his mind to the appropriateness of authorising each of the people whose names appeared on the documents.

568 In the case of each of the ACC accused, Sage signed an authority document bearing the date of the respective examination.

569 Sage authorised a larger number of ACC staff and AFP officers to attend than did in fact attend.[269] The number of AFP officers who attended some or all of the examinations of the ACC accused was as follows: six for Brady;[270] seven for Leckenby;[271] nine for Hutchinson;[272] and six for Wong.[273] All of those persons were listed in the respective authority document, and were therefore authorised for the purposes of s 25A(3).

570 Operation Rune had only 15 members at the time of the Leckenby and Brady examinations. That such a large proportion of them attended those examinations demonstrates how central the examination process was to Operation Rune.

571 Further, in the context of an operation which was stretched for resources, the number of AFP officers who attended each of the examinations rather belies Pike's assertion that his view was that "the ACC process was a waste of time" and "completely inappropriate in the circumstances."

572 Irrespective of whether or not the AFP officers were entitled to be there because they fell within the definition of "member of staff of the ACC", their presence at the examinations did not breach s 25A(5), by reason of the authority documents.

573 However, whether or not Sage should have approved their presence (given their roles in the investigation of possible charges against the ACC accused) is a separate matter, which will be considered shortly.

574 Furthermore, what happened in relation to the authority documents also has some relevance to credit issues, in the following respect.

575 Each authority document referred to s 25A(3), and was divided into two sections: the first part listed people described as "members of staff of the ACC", the second part listed people who were described as "not members of staff of the ACC". AFP officers were all listed in the second part of the authority documents.

576 The division of the documents in that way suggests that whoever drafted the standard form thought there would be people who would be "participating in" the examination who would not be members of staff of the ACC. The drafter's belief is not determinative of the proper construction of paragraph (b) of the definition, but has some relevance to what may have been understood within the ACC.

577 Sage did not express any surprise or concern that the AFP officers were described in the authority documents as "not members of staff of the ACC"; he simply signed them with that description.

578 When Bonnici was shown one of the authority documents before me, the cross-examiner pointed out to him that the AFP officers had been listed as "not members of staff of the ACC". Bonnici replied:

I see that, but I thought they were members of staff. That is surprising. I see the document, but my understanding was that they, under the definition under the [ACC Act], that they were members of staff. I see that document, but that surprises me, that they're described as not members of staff.

579 Bonnici's answer itself is rather surprising, given what he said at the committal, when he produced the authority documents in answer to a call.[274] He told the magistrate that there were a number of matters about the documents he thought he should "put on the record", including the following:

[T]here appears to be an error in them, in that, you'll notice if you turn to the first one sir, that there's members of staff ... and then it says "Persons who are not members of staff" and then the AFP attendees ... are listed. Sir, that is an error. As far as I'm aware all of those AFP would have been members of staff of the Crime Commission. I just point that out so no-one pursues a red herring.

580 His "red herring" comment indicates he was well aware of the importance of establishing at the committal that the relevant provisions of the ACC Act had been complied with, in relation to the authority of the AFP officers to attend.

581 Bonnici was just as aware of the importance of the point, when he gave evidence before me. Immediately after he gave the "surprised" answer set out above, the following exchange took place with the cross-examiner:

Why does it surprise you? Why do you think ---? --- Because my understanding is that a lot of AFP operational officers are authorised participants in investigations and operations, which is one of the definitions of a member of staff within the [ACC Act], and if they're not, there's a process under the Act where they have to be identified before the examiner and be given a chance to be heard about it.

You've predicted where I was going, Mr Bonnici? --- That is the procedure.

582 He had clearly turned his mind to the relevance and significance of this issue before he gave evidence before me. For him to express surprise, when shown how the AFP were described in the authority documents, seemed disingenuous. I formed the distinct impression that in this, as in a number of other areas, Bonnici's evidence was coloured by a desire to advocate on behalf of the ACC, including on behalf of Sage.

583 To some extent, Sage needed to have someone advocating on his behalf, given the way he approached the examinations of the ACC accused, with little regard to the requirements of the ACC Act, or the importance of his role.

584 Some time was spent cross-examining Bonnici and Sage as to the appropriateness of the AFP officers being present, given the contents of an ACC Policy and Standard Operating Procedures document that was in place at the time of each of the relevant examinations. The document was headed "Examinations - Use of Coercive Powers" ("the Operating Procedures"). The version that was in existence at the relevant times discussed the effect of the September 2009 decision in OK(1), which had held that it was not permissible to examine a witness in relation to current charges.

585 Under a heading "Persons who have been charged with a criminal offence, or in respect of whom a decision has been made to charge that person with a criminal offence", the document propounded a cautious approach (pending the hearing of the appeal against OK(1)), including the following:

Where it is anticipated that the witness will be asked questions which relate to the offences with which the witness has been charged or in respect of which the witness will be charged the following procedure should be followed:

• An Examiner will not approve any person being present during an examination where that person is involved in the investigation or prosecution of the witness.

• When making a decision as to who may be permitted access to the evidence of the witness, the Examiner could be expected to preclude from having access to the evidence of the witness all persons who are involved in the investigation or prosecution of the witness.

• When making a decision as to who may be permitted access to the evidence of the witness, the Examiner may consider a submission that all evidence that relates to the charges that the witness faces, or is going to face, be excised from the transcript of the examination. The Examiner may then preclude from having access to the excised evidence of the witness all persons who are involved in the investigation or prosecution.

Counsel Assisting may also make an application to an Examiner that the evidence of the witness not be published to a prosecuting authority. Careful consideration of submissions regarding non-publication directions should be given to ensure that the full effect of the Act can be reached, for example, for use in confiscation proceedings but not otherwise.

The above procedure strikes a balance between the need for ongoing investigations, particularly where there exists opportunity to secure valuable intelligence outcomes, and the obligation to avoid interfering with the course of justice.

586 The Operating Procedures were directed at ACC staff, such as Bonnici and Cohen. Sage noted, quite correctly, that the Operating Procedures did not govern his conduct - the legislation governed his conduct of examinations. Nevertheless, he said he agreed in principle with the specified procedures.

587 In closing submissions, the ACC accused did not complain of a failure to comply with the Operating Procedures, as there was no evidentiary basis for a finding that a decision had been made to charge any of the ACC accused at the time of their examinations.

588 Nevertheless, there are several interesting aspects to what was contained in the Operating Procedures document.

589 First, it clearly stated that investigators, as well as prosecutors, should be precluded from attending examinations and receiving examination material, in the specified situations. That is directly contrary to the position taken by the ACC in this case; here, the ACC argues that there would never be a problem if investigators were present, or had access to any examination material, as long as they did not pass information on to the prosecutors where a fair trial may be compromised.

590 Secondly, it offered a good example of a permissible derivative use, namely, in confiscation proceedings, that would not interfere with a person's right to a fair trial.

591 Thirdly, s 25A(9) mandated that a non-publication direction must be made in respect of a person who has been charged "or may be charged". The latter is a different concept, and a much lower threshold, than the concept of a person "in respect of whom a decision has been made to charge that person." There was no explanation as to why that different concept had been adopted by the ACC in this document. Section 25A(9) was simply not mentioned in the brief extract from the Operating Procedures that was produced to the court.

592 Sage said that had he known, as at the date of an examination, that the witness was going to be charged, he would not have allowed investigating AFP officers to be present.

593 However, Sage gave no evidence of having made any inquiry as to whether the AFP did intend to charge any of the ACC accused. He asserted, in answer to a question asked by Brady's counsel, that "I do have a practice of asking counsel assisting is there any present intention to charge someone, a witness of the nature of Mr Brady, but I can't recall doing it".

594 As discussed previously, by the time of the examination of each of the ACC accused, it is clear that Sage was well aware that they were regarded by the AFP as suspects, and as persons who may be charged.

595 Sage also conceded that he did not turn his mind to, or make any enquiries as to, who the various AFP officers were, or what role they did or might play in relation to the investigation, arrest or prosecution of any of the ACC accused. There is no evidence that Sage did anything other than simply sign the authority documents that others had prepared for him.

596 The AFP officers who attended the examinations were all members of Operation Rune, involved in the investigation of possible offending by the ACC accused and others. Some of them played particularly critical roles in the investigation, the laying of charges, and the subsequent prosecutions, including Pike, Maddigan, Kocalidis (the primary informant in relation to these charges), and Smith (who was the informant at committal, in relation to some of the Malaysian charges).

597 Sage was well aware that the examinations were intended to further the investigation and prosecution of the ACC accused. He knew that, as part of that, the AFP wanted to have them locked in to their account on oath, for use against them in relation to a future prosecution. The very purpose of causing the examinees to make admissions would be nullified if the investigating police were excluded from examinations.

598 As discussed earlier in these reasons, in no case prior to the examinations of the ACC accused had a court suggested that it would be permissible for investigating officers to attend an ACC examination. The decisions in cases in which the examiner had permitted an investigator to be present at the ACC examination all post-date the examinations of the ACC accused. Even in those cases, there was only one investigator noted as present, each of whom seems to have been on secondment to the ACC when they attended the examination. Sage's decision in this case, to allow more than half a dozen investigating AFP officers to attend each of the examinations, seems to have gone far beyond the contemplation of any other examiner or court. It happened without him turning his mind to the possible impact that might have on the ACC accused's right to a fair trial.

599 There was one person the legality of whose attendance at one of the examinations is in dispute, namely, Ayres, an in-house lawyer at the ACC. There is no dispute that Ayres was a member of staff of the ACC, so he did not need to be the subject of a direction under s 25A(3). However, s 25A(5) still required that Sage approve Ayres' attendance at any examination.

600 Sage gave evidence that he did not know where Ayres was in the course of the Leckenby examination. He made no mention of having approved his attendance.

601 Ayres gave evidence that he attended the Leckenby examination, either by viewing it in the adjoining room with the AFP officers, or on his computer - he could not recall which.

602 Ayres was not listed on the authority document approved by Sage. When first asked questions about his presence at the Leckenby examination, Ayres claimed the privilege against self-incrimination. After being provided with a certificate under s 128 of the Evidence Act 2008 (Vic), Ayres asserted that Sage "would have" verbally approved, and he expected that Sage did in fact approve, his presence under s 25A(5). When pressed about this, he conceded that he had no actual recollection of being approved, was surprised that his name was not on the list of authorised attendees, and had seen no document evidencing any approval. I was left with the distinct impression that he was simply reconstructing, based on what he believed should have happened.

603 The ACC criticised the ACC accused for not having asked Sage whether he had verbally approved the attendance of Ayres or any other person at Leckenby's examination. That criticism was inappropriate, for a number of reasons. Sage and Ayres were both ACC witnesses, who were called by the CDPP; they were not within the accused's "camp". Sage was called before Ayres. Neither had mentioned any verbal approval process in their witness statements. In his oral evidence, Sage had only mentioned a written approval process. No document had been tendered which raised the possibility of a verbal process; nor had counsel suggested it in the course of submissions. In those circumstances, there is no reason why the ACC accused should have cross-examined Sage about a possible verbal approval process.

604 I am satisfied that Ayres' presence at Leckenby's examination was in breach of s 25A(5). However, there is no basis for finding that it was anything other than an accidental breach, and it is not suggested that anything in particular turns on it for present purposes.

605 Section 25A(7) provided that if a person (other than a member of the staff of the ACC) is present during an examination, 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.

606 Section 25A(8) provided that a person does not cease to be entitled to be present at the examination if the examiner fails to comply with sub-s (7), or the witness comments adversely on the person's presence.

607 At an examination, a witness cannot refrain from answering a question, irrespective of whether the answer would self-incriminate. The evidence which the witness can be required to give may also have implications (for example, for the safety or reputation of the witness or others, or for a fair trial), as s 25A(9) recognises. In those circumstances, the ACC concedes that the entitlement for the witness to be heard in s 25A(7) could be significant.

608 The ACC accepts that the power in s 25A(7) arguably attracts procedural fairness obligations. However, the presence of sub-s (8) evinces a clear legislative intent that a failure to comply with the statutory procedural fairness requirement in s 25A(7) will not invalidate a direction made under s 25A(3).[275] So, persons authorised by the examiner to be present at an examination are entitled to be present where a direction is made, notwithstanding non-compliance with the statutory requirement to afford the witness an opportunity to comment adversely on their presence.

609 It seems that there was generally only one AFP officer physically present in the examination room during each examination, and they were not dressed in uniform. The transcript does not disclose that they were introduced, or that their status was disclosed, to the ACC accused. Although each of the ACC accused would have seen for himself who was present in the examination room, none of them was told that numerous AFP investigating members were viewing the examination from another room in the building, or that their examinations could be viewed by others with access to the ACC computer system. The AFP officers who were observing, unannounced, the examinations of the ACC accused, were the very persons who were investigating their possible criminal conduct.

610 Bonnici sought to justify the fact that none of them were told who was watching their examinations by his explanation that the AFP officers were all members of the ACC staff. He said that he "always" made an enquiry as to whether or not persons were regarded as members of staff of the ACC, because he was "very much aware" that if people were not, then the witness was entitled to know that they were there. If that was truly his practice, then his expressed surprise at how the AFP officers were described on the authority documents seems even more disingenuous.

611 As far as Sage is concerned, there is simply no evidence that he even turned his mind to the requirement of s 25A(7). As already discussed, Sage signed the authority documents in which the AFP officers were listed as "not members of the ACC staff". Unlike Bonnici, Sage did not suggest that the AFP officers' status as "members of staff of the ACC" justified his not telling the ACC accused who was present.

612 Asked by Leckenby's counsel whether there was any reason for not telling Leckenby about the presence of AFP officers at his examination, Sage replied:

No, it is my practice to conduct examinations in this manner and there are a number of reasons why I don't provide a list but there is no reason why Mr Leckenby couldn't have known if I'd have been asked.

613 Bonnici gave a similar answer in response to Hutchinson's counsel. He said "If someone asks me - a witness or their lawyer asks me, 'Is there anyone else here?' I will tell them." He said that otherwise he would not "volunteer" that there were other people there.

614 Section 25A(7) imposes a positive obligation on the examiner to inform a witness of the presence of people who are not members of ACC staff, not an obligation to tell the witness only if they happen to ask. Unless Sage or Bonnici disclosed that people could watch the examination from another place, there would be no reason for a witness to ask to see the list, as it would seem self-evident to the witness that the only persons "present" were those in the room.

615 If the AFP officers were members of staff of the ACC, then there was no breach of s 25A(7). Even if there was such a breach, by virtue of s 25A(8) their presence at the examination would not be unlawful. Either way, Sage's failure to disclose the presence of the AFP officers does not involve statutory illegality. But what happened in relation to Sage's non-disclosure of the police presence is yet another demonstration of his reckless failure to turn his mind to his legal obligations, and his indifference to the rights of the ACC accused.

616 Sage offered no satisfactory explanation for ignoring a provision of the Act which was clearly designed to protect examinees, particularly examinees who may be charged. He demonstrated an extraordinary approach to the protective provisions of ss 25A(3) and 25A(7), one which completely disregarded his obligations in terms of the protections available for a person being examined under the Act.

617 Sage's answer to the question at [612] is typical of the attitude he frequently displayed, when asked about his conduct of the examinations. He would often refer to his "practice", as if that were a legitimate substitute for turning his mind to his specific statutory obligations. Only a few minutes after giving that particular answer, in answer to a different question, he said "I can conduct an examination in a manner that I see fit to conduct it."

618 Sage's failure to inform the ACC accused deprived them of the opportunity to challenge the presence of the AFP officers who were investigating their conduct. Logan J emphasised in QAAB the right of a suspect to challenge the presence of an investigating official, even one who was a member of staff of the ACC.[276]

619 I have been critical of Sage in respect of the circumstances in which the investigating AFP officers were permitted to be present at the examinations. Sage clearly failed to provide an opportunity to the ACC accused to make submissions as to their presence at the examinations. Even if his conduct did not breach s 25A(7), because the AFP officers were members of staff of the ACC, that is not to the point. The point is that the ACC accused were deprived of the opportunity to point out that the presence of the investigators would set at nought the non-publication direction that the ACC Act required.[277] Sage's action not only deprived the ACC accused of the opportunity to protect themselves, but also to point out the unlawfulness or inappropriateness of Sage's own actions.

620 Allowing large numbers of AFP officers to secretly attend the examinations of people who the examiner knew to be suspects, was contrary to what any of the cases at the time would have countenanced. In so far as Sage was unaware of the roles the specific AFP officers each played in the investigation of possible offending by the ACC accused, that is because he abstained from asking any relevant questions.

(a) The only relevant criminal activity which fell within the scope of the determinations was money laundering; foreign bribery was not mentioned in either of the determinations;

(b) The various documents that were provided to Sage for his consideration, prior to the issue of each of the summonses, said that the relevant criminal activity to be investigated was money laundering;

(c) The summonses stated that questions would be asked about money laundering; and

(d) Sage told the ACC accused at the start of their examinations that "most of the questions" would relate to the subject matter of the summons.

622 In fact, as far as the AFP were concerned, the only purpose of the examinations was to explore the foreign bribery allegations, not to investigate money laundering. Bonnici also admitted that that was the purpose of the examinations. The AFP witness summaries and briefing papers were all focussed on the foreign bribery allegations.

623 During their examinations, the ACC accused were not asked a single question about money laundering, across more than 750 pages of transcript.

624 It is clear from ss 25A(6)[278] and 28(3)[279] of the ACC Act that an examiner is not restricted to examining a witness only about the matters mentioned in the summons, as long as the matter relates or is relevant to an ACC operation/investigation. Money laundering is an offence that is premised on the existence of a predicate offence; in this case the relevant predicate offence is foreign bribery. Accordingly, the ACC accused do not suggest that Sage lacked the power to examine them about the predicate offence.

Communicating with the ACC accused during the examination breaks

625 The ACC accused say that the AFP had an improper practice of approaching examinees during adjournments in their examinations, and pressuring them to change their evidence. They say Pike intended to force admissions from examinees, then stop the examination and pressure them to make a statement outside the examination (with the ultimate goal of getting them to plead guilty and give evidence for the prosecution). They say that Sage was aware of this, and allowed it to happen. The evidence falls a long way short of establishing those propositions.

626 During the course of his examination, Leckenby asked for an adjournment after he was shown the Nepal fax. During that break, Leckenby and his counsel were approached by Bonnici and Renwick (one of the AFP officers watching the examination). Bonnici said his intention was to see whether there was a change in position, and to advise Leckenby that the AFP would need to speak with him about certain issues raised in his examination. Bonnici offered Leckenby the opportunity to provide a written statement, which his counsel undertook to consider. Bonnici said that, while he could not remember, he may have reminded Leckenby of his obligation to tell the truth, and the seriousness of the consequences for failing to do so, as that was his general practice. After the adjournment, Leckenby's examination continued, and he was asked further questions about the Nepal fax.

627 Sage's memory is that, at the time of asking for the adjournment, Leckenby was at "a point of breaking down". He believed Leckenby was about to fully cooperate and give a truthful account in relation to the Nepal fax. Sage said he did not know what happened during the break in Leckenby's examination, although Bonnici would have updated him on what had transpired during the break before recommencing the examination. Initially Sage said he did not give Bonnici a direction to speak to Leckenby in the break, however he later acknowledged that, while he didn't recall, he may have said something along the lines of, "time to go and have a talk to Mr Leckenby."

628 Wong was also approached during the lunch break in his examination by Pike, Smith and Bonnici. Wong did not have a lawyer present. Bonnici requested the lunch break, and told Sage that he wanted to speak with Wong. Bonnici said he made the approach, as he felt Wong was being evasive and was giving evidence that contradicted the documentary evidence. Pike told Wong that they did not believe his evidence, that they thought he was lying; he said words to the effect: "we don't believe you are telling the truth." Bonnici reminded Wong of his obligations under the summons, and both Pike and Bonnici told Wong to start telling the truth after the break. Once his examination resumed, Wong admitted to a large amount of the prosecution case against him.

629 Hutchinson was also approached by Bonnici during the break in his examination. Bonnici played Hutchinson an excerpt from Leckenby's examination, the legality of which has been discussed elsewhere in these reasons. Bonnici said the purpose of approaching Hutchinson was to express to him that his superior, Leckenby, had conceded that bribery occurred. He agreed the intention was to put pressure on Hutchinson, but denied that the pressure was applied inappropriately.

630 Bonnici denied that the general approach was made to "put the frighteners" on examinees or to pressure them to make admissions. Pike also denied that the purpose of approaching Wong and Hutchinson during the break was to put pressure on them to make a confessional statement to police.

631 Speaking of the examinations generally, Sage said that it was not unusual for Bonnici to go and speak to an examinee during a break in the examination. Sage said his practice was that when an examinee was at "a point of breaking down", he would offer the examinee an opportunity to take a break. During the break, the practice was for counsel assisting, and usually another person, to go and speak to the examinee to "talk to them about fully cooperating." Contrary to Sage's evidence, Pike said this was not a common tactic, but happened "on occasions".

632 Sage also said that his practice was, if he felt it was necessary, to remind examinees of the need to tell the truth, and the potential penalties and consequences of failing to do so. Similarly, Bonnici said that in circumstances where an examinee gave evidence that he thought contravened the documentary evidence, he would typically remind the examinee of their obligation to tell the truth and the serious consequences for giving false or misleading evidence.

633 I am not persuaded that any impropriety has been demonstrated in what happened during the breaks in interviews. It was not improper to remind examinees of their obligation to tell the truth; the examinations formed part of an inquisitorial investigation and Sage was properly engaged in seeking truthful answers. Approaches were made in circumstances where there was a genuine belief that the examinee was not telling the truth.

634 The ACC accused say that what occurred in relation to the dissemination of the examination material was illegal, as well as being unfair.

(b) the contents of any document, or a description of any thing, produced to the examiner; or

(c) any information that might enable a person who has given evidence before the examiner to be identified; or

(d) the fact that any person has given or may be about to give evidence at an examination;

must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety and reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.

636 The CEO of the ACC may vary or revoke such a direction in writing, unless to do so "might prejudice a person's safety or reputation or prejudice the fair trial of a person who has been or may be charged with an offence."[280]

637 It is an offence for a person to make a publication in contravention of a direction given under s 25A(9).[281]

638 There is no dispute that the word "may" (in the first sentence of s 25A(9)) confers a discretion on the examiner, and the word "must" (in the second sentence) imposes a mandatory obligation to make a non-publication direction. But there is a dispute as to when that mandatory obligation arises.

639 The CDPP contends that the mandatory obligation only arises if the failure to give a direction "might prejudice the safety and reputation of the person". The CDPP's suggested construction requires that the word "would" be read in before the words "prejudice the fair trial of a person ...". That is to say, the CDPP suggests that the first part of the second sentence should be read as if it said "The examiner must give such a direction if the failure to do so might prejudice the safety and reputation of a person or would prejudice the fair trial ...".

640 The ACC did not support the CDPP's suggested construction, which is contrary to the obvious purpose of the provision, and contrary to the interpretation which has been consistently adopted by the authorities.[282]

641 The provision imposes an objective standard (whether the person has been, or may be, charged), not a subjective standard (whether the examiner believes the person has been, or may be, charged). So, an examiner cannot get around the obligation by failing to make appropriate enquiries as to a person's status.

642 On the proper construction of s 25A(9), Sage was obliged to give a non-publication direction if the failure to do so might prejudice the fair trial of any of the ACC accused who may be charged with an offence. In deciding the content of a non-publication direction, Sage was required to consider what information it would be appropriate to publish, to whom it would be appropriate to permit publication, and what manner of publication would be appropriate.

643 What was required to comply with s 25A(9) is to be assessed as at the time of the examinations, not with the benefit of hindsight.

644 As already discussed, it is clear that each of the ACC accused was, at the time of his examination, a person who may be charged with an offence. That fact was well known to various AFP and ACC staff, as well as Sage himself.

645 The provisions of the ACC Act, in particular s 25A, preclude any inference that the ACC Act permits any derivative use of self-incriminating evidence, in respect of a person who falls within the protective provisions.

646 Moreover, the exercise of any other powers regarding the use or dissemination of material under the ACC Act (including ss 7, 12 and 59), are subject to the overriding and mandatory exercise of the s 25A powers to ensure the fairness of a potential trial.

647 The ACC Act deals with the risk to a fair trial posed by the derivative use of examination material, in respect of people who have been or may be charged with an offence, by controlling access to the examination and the information flowing from it. Any particular direction required in a particular case will of course depend upon the circumstances of the person to be examined. Where that person is a suspect who has been requested to participate in, and has refused, a cautioned ROI with investigators, little imagination is required to discern the appropriate application of the requirements of s 25A to protect the fairness of the potential trial(s) of those suspects. Investigators and prosecutors must be precluded from access to the examination material.

What dissemination occurred to the AFP and CDPP?

648 Before the first round of examinations had even begun, the AFP requested that orders be made allowing all examination material to be disclosed to the AFP and CDPP. Thereafter, the AFP and CDPP took numerous active steps to obtain examination material, including the following.

649 In late February 2010, ACC and AFP staff communicated about which foreign and domestic law enforcement agencies the AFP would like to be exempted from the directions. Cohen said that the ACC "can include these organisations as a standard exemption to the non-publication order for all examinations."

650 On 25 March 2010, Maddigan emailed Ayres and Cohen, with a request that the AFP and CDPP be included in the exemptions in the a non-publication directions for the forthcoming examinations of Brady, Leckenby and Wong. There was no suggestion that disclosure would be limited to specified individuals or roles within those organisations.

651 Ayres responded to Maddigan's email only two minutes after he received it, with the message: "ok - no probs." This was so early on in the process, that the AFP had not even provided to the ACC the briefing papers to enable the Wong, Brady and Leckenby summonses to be issued.

652 At the conclusion of Brady's examination on 12 April 2010 (at which he was unrepresented), Sage announced that the AFP and the Malaysian Anti-Crime Commission ("MACC") would be made exceptions to the non-publication direction. He also announced as an exception "the Commonwealth Director of Public Prosecutions and the staff of the Director for any matter including a prosecution for which they are responsible arising from this investigation."

653 On the afternoon of 13 April 2010, Leckenby's examination was adjourned part-heard to 22 April 2010, for further mention. Towards the end of the examination, Sage said the following:

I'm going to give an interim non-publication direction in relation to your evidence thus far. When your examination concludes, Mr Leckenby, if it be on the next occasion or whenever, I intend to give a detailed non-publication direction. So for the duration of this adjournment ... I direct that there is to be no communication other than between the persons here present of any of the matters arising from the examination thus far.

654 Shortly thereafter, Sage then added that as an exception to the interim non-publication direction, he would allow the AFP to have access to the evidence thus far. Sage said he was not sure whether the AFP requested this, or he just decided to make the exception.

655 Sage said that the reason he did not make an exception for the CDPP in the interim non-publication direction was so that the AFP had an opportunity to take a statement from Leckenby, without the prosecution having access to his examination. Sage agreed that in 2010, if it would assist the AFP by him not including the CDPP as an exception to the non-publication direction, in order for them to gain the cooperation of a witness, then he would have been amenable to that course of action.

656 By 24 May 2010, when Leckenby's solicitor was advised that his examination would not be continuing, the AFP had come to the opinion that Leckenby was likely to be charged, and had informed the ACC of that fact. On the following day, on the application of Bonnici, Sage discharged Leckenby from further attendance, and made a non-publication direction that permitted dissemination to the AFP and "any prosecuting authority ... for any matter including a prosecution for which they are responsible arising from this investigation." Leckenby and his lawyers were not given notice of the application.

657 Sage's explanation for why that occurred is unsatisfactory. Sage said that, at the time of making the May non-publication direction, he was aware that the AFP had told the ACC that Leckenby was likely to be charged; that is the very reason why his examination was not going to be completed. Despite that, Sage said he did not see any issue with providing the transcript to the CDPP, as Leckenby had not been charged and a brief had not been provided to the CDPP. This ignores the plain meaning of what s 25A(9) requires of the examiner in a situation such as this.

658 Bonnici was also cross-examined about the decision in May to authorise dissemination of Leckenby's examination materials to the CDPP. He tried to justify it by saying that "it needed to be looked at in the context of permissible use at the time". However, that answer does not sit well with his own evidence, that he understood that s 25A(9) applied to persons who had been charged or "were likely to be charged."[283] By the time of the May non-publication direction, Leckenby clearly fell into the category of a person who was likely to be charged.

659 On 25 June 2010, Portway emailed Cohen with a request for the "discs/cds of all the examinations you conducted for us re the Securency matter, plus any transcriptions made."

660 On 22 July 2010, Maddigan followed up the request for the discs with Cohen; she also asked Cohen to have Sage include the CDPP in the exemption for all hearings "for disclosure purposes", and asked how the AFP were to establish which agencies could receive the examination material. Cohen replied that the ACC would have to arrange the dissemination to any external agencies that the AFP would like to receive the information.

661 On 28 July 2010, Maddigan, Pike and Cohen met to discuss the AFP's request for the examination material to be disseminated to the CDPP. Cohen informed Maddigan and Pike that he had discussed the matter with ACC lawyer, Anthony Boardman, who raised no impediment to the AFP's request to disseminate the material to the CDPP.

662 On 28 July 2010, the ACC sent the AFP the examination recordings for five witnesses, including Brady and Leckenby. They were sent under cover of a letter that said that the information was provided pursuant to s 59(7) of the ACC Act, and contained examination material that was subject to legislative restrictions under s 25A of the Act.

663 On 30 July 2010, Maddigan repeated her request to include the CDPP in the exemption to all non-publication directions. She also asked for the summaries of the examinations prepared by the ACC "for AFP purposes only".

664 Also on 30 July 2010, Cohen emailed Maddigan a spreadsheet, detailing which agencies had been given permission to receive the ACC examination material pursuant to the non-publication direction for each examinee. According to the spreadsheet, the ACC, AFP and CDPP were all authorised to receive Brady's examination material, and the AFP, ACC and "[a]ny Prosecution Authority and their staff" were authorised to receive Leckenby's examination material.

665 On 10 August, Maddigan circulated the examination summaries to Pike and six other members of the Operation Rune team, for them to review and decide which examinations needed transcribing, and to identify any follow ups or persons to approach.

666 On 17 September, Cohen informed Maddigan that the audio recordings of various examinations, including Leckenby's and Brady's, would be delivered to the CDPP by the ACC the following week. A few days later, Maddigan asked Cohen to also release the Leckenby video recording to the CDPP.

667 Under cover of a letter dated 28 September 2010, the ACC provided the CDPP (Sewell and Kirne) with the audio recordings of examinations, including for Brady and Leckenby. The covering letter said the material was being provided under the ACC Act, but did not refer to any specific provision.

668 On 8 October, Sewell asked Maddigan to provide the CDPP with transcripts of the audio recordings. Maddigan responded that the AFP only had a full transcript for Leckenby's examination, which she provided; however, she offered to provide the ACC summaries instead. The AFP delivered the ACC summaries (including for Brady and Leckenby) to the CDPP on 12 October.

669 On 10 November, before the second round of ACC examinations began, the AFP once again asked ACC staff to ensure that the CDPP was exempted from all non-publication directions, so that all material could be provided to the CDPP at the time of the hearings.

670 At the conclusion of Hutchinson's examination on 24 November (at which he was legally represented), Sage announced that for the duration of the adjournment there was to be no communication of any of the matters arising from the examination with anyone other than the persons he had approved. On 29 November, Hutchinson attended for the second day of his examination, at the end of which Sage announced that he was making a non-publication direction, from which were excepted the AFP and CDPP.

671 Similarly, when Wong's examination concluded on 30 November, a non-publication direction was made that permitted dissemination to the AFP and CDPP (including for any prosecution), and to any lawyers who Wong might engage. Wong (who was unrepresented) asked for clarification of what Sage was ordering. Bonnici replied "The reason is the Federal Police are investigating the allegations that's why they're getting it. The Commonwealth DPP will have to assess the allegations, including material from all witnesses and all information."

672 The ACC summaries for the five second round witnesses, including Wong and Hutchinson, were emailed by the ACC to the AFP on 30 November. No formal covering letter seems to have been prepared on that occasion.

673 Under cover of a letter dated 28 January 2011, the ACC provided to the CDPP the audio recordings for the second round of examinations, including the examinations of Wong and Hutchinson. The covering letter said the material was being provided under the ACC Act, but did not refer to any specific provision.

674 It appears that the AFP collected their copy of those audio recordings around 31 January 2011. No formal covering letter seems to have been prepared on that occasion.

675 The ACC's written submissions assert that the disseminations to the AFP and/or CDPP on 28 September 2010, 28 January 2011 and 31 January 2011 were made pursuant to s 59(7) of the ACC Act. As discussed above, the only covering letter which referred to s 59(7) was the covering letter for the 28 July 2010 dissemination. The covering letters for the 28 September and 28 January disseminations did not refer to any provision; nor did they purport to be signed by a delegate of the CEO. There seems to have been no covering letter at all for the 31 January dissemination. No oral evidence was led on the matter, and there is no other written evidence to substantiate the ACC's submission.

676 Electronic copies of the transcripts, including for Brady, Leckenby and Hutchinson, were sent by the AFP to the CDPP in April 2012. This was about 10 months after each of those three had been charged with foreign bribery offences. The electronic copies of the transcripts were saved to the Operation Rune file on the CDPP's general drive.

677 By mid-July 2012, senior lawyers within the CDPP were becoming concerned about what practice should be adopted in relation to ACC transcripts, pending the decision in Seller(1). At a meeting of the CDPP senior management committee on 13 July 2012, it was resolved that in matters other than ACC Act prosecutions, "case officers should refrain from reading transcripts of ACC examinations of defendants and witnesses and that such transcripts should not be provided by the CDPP to counsel."

678 On 17 August 2012, Garling J published his reasons for decision in Seller(1). On 20 August, all legal staff in the Melbourne office of the CDPP were sent a copy of the decision, under cover of an email which stated:

If you have a case where the ACC has conducted an examination of an accused, where that material has been provided to the CDPP, could you please let your branch head know. As you know, for some months now, we have advised DPP staff not to accept or read examinations, pending this decision being handed down. That process should certainly continue.

679 Notwithstanding that clear directive, Sewell and others in the prosecution team continued to utilise (or sought to utilise) the examination material.

680 On 3 September 2012, Robinson QC sent an email to Barrington, copied to Sewell and to Robinson's junior counsel at the committal (Kevin Armstrong and Sarah Keating), which asked for an electronic copy of any of the ACC transcripts, so he could search them electronically.

681 A few days later, Sewell asked Bonnici whether the ACC transcripts could be provided in electronic format, for the purpose of "provision to our counsel only and for our purposes only in the Operation Rune prosecution." Sewell said that "such electronic material would not be put on our corporate database but kept discretely apart." When cross-examined about his email, Sewell agreed that it contained a request for the provision of material which was directly contrary to the finding in Seller(1). It was also contrary to the unambiguous direction from his CDPP superiors. Sewell said he could not recall why he sent the email.

682 During September 2012, senior lawyers within the CDPP continued to consider the ramifications of the Seller(1) decision. On 28 September, Kirne emailed all legal staff in the Melbourne office, advising that any ACC transcripts not associated with ACC Act prosecutions should be kept secure and not examined.

683 That same day, Barrington confirmed to Kirne that the CDPP had received both hard copy and electronic transcripts for the Operation Rune examinations, and that one case officer had read them prior to the Seller(1) decision being handed down.

684 On 1 October 2012, Barrington deleted the electronic transcript from the CDPP network drive. The discs containing the audio recording of the examinations, and the hard copies of the transcripts, were placed in the custody of a CDPP administrative officer who was not involved with Operation Rune.

685 Ayres was not able to explain why AFP investigators were permitted to access the examinations of suspects; he said because it happened, and he was aware of it, he must have thought that it was permissible. In relation to the dissemination of Brady's examination material to the CDPP, he could not recall if he adverted to the consequence of interference with the administration of justice. He said he would have been aware of the need to quarantine information in relation to those who may face criminal trial, and that such material should not be disseminated to the CDPP.

686 Sage said that at the time of these examinations, he had a practice of including the CDPP in the exceptions to all non-publication directions, unless he was asked to do otherwise. He said this was his practice at the time of the ACC examinations. I make several observations in relation to that evidence.

687 First, it is practically impossible for the ACC accused to test such an assertion, as public interest immunity was (quite understandably) claimed in respect of any information which revealed details of other ACC investigations.

688 Secondly, as noted earlier in these reasons, that asserted practice is diametrically opposed to the approach he had taken in the earlier case of ABC v Sage.[284]

689 Thirdly, such a practice had not been endorsed by any court, and was contrary to the approach that had been taken by other examiners, in the other cases that had been before the courts at the time of the examinations of the ACC accused.

690 As far as including the AFP in the exceptions to non-publication directions was concerned, Sage said he did not have a general practice at the time.

691 Given that the AFP were included in the exceptions to each of the non-publication directions, Sage said that someone (he presumed Bonnici) must have asked him to include them. Sage said that in this case, he made an exception for the AFP because the AFP were a partner in the investigation.

692 Bonnici was cross-examined at length about his understanding of the law at the time of the ACC examinations. He agreed that prior to the decision in OK(1), examiners and members of the ACC regularly took precautions by making orders under s 25A(9) in relation to people who had been charged or were likely to be charged with offences. He also understood that failure to comply with 25A(9) might prejudice a person's right to a fair trial. However, Bonnici said that at the time of the examinations of the ACC accused, he did not understand that the requirement in s 25A(9) applied to persons who may be charged with an offence. Bonnici did not concede that his understanding of s 25A(9) ignored the clear wording of the section.

693 Bonnici said that as he understood the law in force today, a person who had been offered an ROI would either not be examined about the circumstances which police wanted to question them about, or, if they were examined, strict directions would be made under s 25A(9). Although he asserted that, since the time of the examinations of the ACC accused, the courts had shed more light on the meaning of s 25A(9), he did not proffer any case in which the meaning of the words "may be" had been discussed or given a meaning such as the one for which he contended.

694 In so far as both Sage and Bonnici say that their understanding was that s 25A(9) only applied to persons who had been charged, or were likely to be charged, with an offence, their approach shows a total disregard for the unambiguous wording of the provision. Section 25A(9) clearly stipulated that Sage was obliged to give a non-publication direction if the failure to do so might prejudice the fair trial of any of the ACC accused who may be charged with an offence. For them to suggest that the case law at the time of the examinations suggested otherwise is wrong; there was no case at the time which had said that "may be" means "likely to be", or means anything other than its plain and ordinary meaning.

695 The ACC accused are critical of the fact that Sage did not make the relevant non-publication direction until the end of each day's hearing, because those present in the examination room had the capacity to (and did) communicate electronically with persons outside the room, without the benefit of a non-publication direction.

696 While Leckenby's examination was underway, someone present emailed Maddigan (who was at the AFP premises) to tell her what was happening in the examination. That led her to email Ayres, asking "I hear he's rattled - are we getting anywhere with him?" Ayres responded by telling her about some admissions Leckenby had just made.

697 Pike, similarly, felt at liberty to report to Kirne during Wong's examination that Wong had produced notes at the examination, and to seek his advice on how to deal with that issue.

698 Maddigan was on the list of AFP officers approved to attend Leckenby's examination, but Kirne (and other CDPP staff) was not approved to attend any of the examinations. Whilst no particular prejudice may have flowed from those two disclosures, the fact that they occurred does demonstrate some degree of laxness of attitude by the AFP and ACC staff to the statutory requirement that examinations must be conducted in private.

699 That said, I do not agree with the ACC accused's submission that Sage should have made the non-publication directions at an earlier stage, in order to protect their right to a fair trial. The question of when a non-publication direction should be made is a matter for the examiner to determine in each case. But if the examiner decides not to make a non-publication direction until the end of the hearing, then they should at least take reasonable steps to ensure that nobody present at the examination is making any unauthorised publication in the meantime.

Showing the Leckenby recording to other witnesses

700 The ACC accused make particular complaint about what happened regarding the dissemination of Leckenby's examination recording. The AFP and ACC staff both wanted to show other witnesses the part of Leckenby's examination where he broke down and made what they regarded as admissions of wrongdoing. As this would have involved the dissemination of the recording, a variation to the non-publication direction was needed; Bonnici was well aware of that fact.

701 On 22 November 2010, Bonnici wrote to Philippa de Veau, national manager of legal services at the ACC, seeking variation to the Leckenby non-publication direction. He said the variation was sought as other witnesses might be more willing to disclose wrongdoing if they saw that a senior manager had done so. He expressed the opinion that the variation would not prejudice, among other things, the fair trial of a person who may be charged with an offence.

702 On 24 and 25 November, de Veau corresponded with Bonnici about some concerns she had; in particular, she sought assurance that disclosure would not prejudice anybody's safety. As far as possible risk to a fair trial was concerned, she raised the possibility that Leckenby and whoever was shown his examination might "both end up as prosecution witnesses down the track", and might be criticised on the basis that their evidence had influenced each other.

703 In his response, Bonnici assured her that there was no known threat to anybody's safety. Bonnici did not disclose to de Veau that Leckenby was likely to be an accused, not a prosecution witness (as she understood him to be); in particular, he did not inform her that the very reason why Leckenby's further examination had been cancelled was because of the likelihood that he would be charged.

704 Based on Bonnici's response, on 25 November, de Veau, as delegate of the CEO, varied the non-publication direction to allow the transcript and audio recording of Leckenby's examination to be shown to other witnesses in the course of their examination before the examiner. Whether she would have done so, had she been told the true position in relation to Leckenby, is unknown.

705 Hutchinson's examination resumed on 29 November 2010. Bonnici showed him the video of Leckenby's examination outside of the examination, despite the fact that the varied non-publication direction only permitted audio to be used, and even that only during the examination itself. Playing during an examination was not an irrelevant condition of the non-publication direction. It was an important safeguard that ensured a record was kept of the interaction surrounding the playing of the recording.[285]

706 This incident is yet another illustration of Bonnici's scant regard for the rights of the ACC accused.

707 Sage was even more cavalier in his attitude to the playing of Leckenby's recording. He said there was no need to seek a variation to the non-publication direction, because "It was my examination and I wouldn't have to vary a non-publication direction," and "I could use [the recording] for whatever purpose I deemed necessary."

708 Section 25A(9) required Sage to make a non-publication direction if, not to do so, might prejudice the fair trial of the ACC accused. In deciding the scope and content of such a direction, Sage should have adopted a careful approach, reflecting the purpose for which the duty to make such a direction was imposed.

709 Instead, Sage made non-publication orders which would have the effect of completely undermining the ACC acused's right to a fair trial. Sage's asserted practice of automatically allowing dissemination to prosecuting authorities (for them to use to prosecute the examinee in relation to the very matters about which they had been compulsorily examined), does not justify his failure to have regard to the unambiguous requirements of s 25A(9). The fact that he could offer little explanation for why he allowed wholesale dissemination to all AFP investigators, other than that someone (presumably counsel assisting) must have asked him to, is an unacceptable explanation from an independent statutory office holder entrusted with extraordinary powers such as Sage had.

710 A decision to publish transcripts or documents, which should have been the subject of an appropriate direction, would be a decision beyond power. In fact, for the purposes of the stay application, the critical question is not whether the actual non-publication orders were unlawful and wrongful, but whether as a result of the investigators and prosecutors being armed with the ACC accused's evidence, there will be a miscarriage of justice if a stay is not granted.

711 The ACC accused say that there are three specific ways in which what happened in relation to the ACC examinations has fundamentally altered their criminal trials.

712 First, the practical effect of each of their examinations has been to constrain their legitimate forensic choices in the conduct of their trials, by reason of the answers given on oath in compulsory examinations.

713 Secondly, the prosecution case has been assembled using material unlawfully obtained from the examination process by the AFP and CDPP. In particular, they say that the AFP used the knowledge they gained from the examination process to guide their selection for inclusion in the hand-up brief from the tens of millions of documents on the NUIX system.

714 Thirdly, the way in which the AFP have used the knowledge to compile the brief has constrained their forensic choices, because it interferes with their capacity to test the prosecution case at trial.

715 The ACC accused say that removing the present counsel and solicitors will not deprive future prosecutors of the knowledge, or benefit of the knowledge, of what the ACC accused said in their examinations.

716 They also said in their written submissions that, because they are charged with conspiracy, the forensic disadvantage to each of them also has an impact on the fair trial of the others. That submission was not really elaborated on.

717 The CDPP says that both the AFP and CDPP acted lawfully at all times and, in any event, no forensic disadvantage has occurred. The CDPP says that even if there has been forensic disadvantage, it would not necessarily result in an unfair trial; any potential unfairness could be remedied or avoided by the trial judge.

718 In order to answer this question, it is convenient to begin by considering what the ACC accused disclosed during their examinations, and how they say that has constrained them.

719 At the start of each of the examinations, the ACC accused accepted Sage's offer to make a claim of self-incrimination for all of their evidence, rather than on a question by question basis. Sage then made a "use immunity" order in each case, under s 30(5) of the ACC Act, covering the entirety of their evidence.

720 Bonnici's lines of questioning were based on the AFP briefing papers, including the supporting documents selected by the AFP. He asked the questions that the AFP wanted the witnesses to answer about the foreign bribery allegations, including about their own involvement in any criminal activity.

721 Leckenby's examination extended over some 500 questions, predominantly concerning Malaysia and Nepal.

722 The questioning involved Bonnici, often by leading and aggressive questioning, establishing what is now the basis of the prosecution case against Leckenby. That included: the business imperative for NPA to succeed in obtaining foreign note printing contracts; Leckenby's connection and relationship to NPA and Securency agents including Kayum and Pande; his relationship with other alleged conspirators; and his belief that agents were used as a mechanism for the payment of bribes to other people (including those involved with central banks and political connections) to assist in obtaining contracts.

723 Leckenby confirmed his practice regarding the receipt of correspondence, identified his initials on the Nepal fax, and confirmed he had read the Nepal fax. He was pressed to agree that the Nepal fax was not consistent with any innocent interpretation, and that it was "highly irregular", "of concern" and "very suspicious".

724 After being questioned vigorously about the Nepal fax, Sage adjourned the examination for a short time, directing Leckenby to consider his position, and exhorting him to say all he knew about the payment of bribes whilst he was under the "protection" of Sage.

725 Upon returning, and in response to more leading questions from Bonnici, Leckenby eventually conceded that NPA used agents so that it was not seen to be paying bribes.

726 Leckenby's evidence at the ACC examination covered essential aspects of the prosecution case on the current charges. In that circumstance, the capacity of his counsel to test the strength of the prosecution case, in a manner consistent with the evidence he gave on oath, is severely, if not completely, curtailed.

727 The actual giving of evidence by Leckenby seems not to be a viable option. Further, Leckenby would have to decide what plea to enter, what evidence to challenge, and what evidence (including character evidence) to lead at trial, according to the answers he gave at the examination about the subject matter of the current charges.

728 During the lunch break, Pike, Bonnici and Smith approached Wong alone in the meeting room and insisted that his answers were not being believed. They exhorted him to "tell the truth". When the examination resumed after lunch, Wong admitted whole swathes of the prosecution case against him.

729 When questioned about his conduct in Malaysia before the foreign bribery legislation came into force, he confessed that Kayum's role was to get the contract, and that Kayum would pay incentives in order to do that. He conceded knowing that Kayum had intended to pay incentives to those associated with the Malaysian bank. He admitted knowing that agents had done things that were not acceptable.

730 When asked about Nepal, Wong confessed significant aspects of the prosecution case, including that he knew that the Nepalese agent was to provide incentives to people in the Nepalese bank, who could help NPA to secure the Nepalese contract.

731 Wong was questioned at length about the Nepal fax. He admitted authorship of the document. He confessed that allocating money to "others" meant allocating it to those who were being "incentivised". He admitted that the "additional amount" referred to in the Nepal fax was to allow for the provision of "incentives" to others.

732 Wong said he was uncomfortable with business being done this way in Nepal. Wong agreed that others, including at least Leckenby, knew of that practice.

733 Wong's forensic choices at trial have been seriously constrained, in the same ways as Leckenby's.

734 Hutchinson's evidence at the ACC covered a wide range of topics, including his own personal history and the practices at NPA when he was there.

735 Hutchinson said that it would be "a pretty rare occurrence" for agents to be reimbursed for expenses, and he did not think they could be paid "retainers".

736 Hutchinson said that he would sign-off on requests for commission payments. From time to time, he had concerns about the commission rates paid to agents being too high. He said that with hindsight, "perhaps they're paying other people that's what you have to think," "presumably in the bank", and he did not think he had ever queried the commission payments that looked too high. He said that when he was at NPA, he "would've had some concern" that commissions being paid to agents were then forwarded to others, who might influence currency contracts.

737 Shown the Nepal fax, Hutchinson said he did not recall having seen it, and did not know what it was about, beyond what it contained on its face. He said he could think of no legitimate explanation for the "others" paragraph, and agreed that it looked "suspicious". Asked whether it might be that the inflation of the price was to pay government or bank officials, he agreed it might have been.

738 Hutchinson said that Leckenby had not told him about the matters raised in the Nepal fax, and he did not think he had ever been told by Leckenby or anyone else that the agents have to pay "others".

739 Hutchinson's examination contained fewer incriminating admissions than those of Leckenby and Wong. That should not matter to any great extent; it cannot be the case that the greater the admission of guilt, the greater the forensic disadvantage, and therefore the more likely the person is to get a stay.

740 Hutchinson's counsel are still constrained in the forensic choices they can make, for the same reasons as Leckenby and Wong. For example, they cannot argue or call evidence that it was common for agents to be reimbursed expenses; that Hutchinson did not think that the commissions were too high; that Hutchinson, given his experience and expertise in the industry, did not think that the Nepal fax looked suspicious, or that there was an alternative innocent explanation for its terms.

741 Included in the bundle which the AFP provided to the ACC for Brady's examination were two particular documents, which the AFP believed incriminated Brady in foreign bribery offences:

(a) An email, dated 13 October 2003, from Brady to Leckenby and Curtis, copied to Boillot, relating to Malaysia. It referred to Kayum's request that his commission rate be maintained, because his "commitments have been expressed in percentage terms". The prosecution relies on the email as evidence that Brady knew that Kayum had offered bribes; and

742 Asked whether he knew if there was any truth to the allegations of bribery in Malaysia, Brady said he had never seen anything to lead him to believe that was the case. Brady said he only played a minor role in any negotiations. He had no knowledge of the terms of Kayum's appointment, or the detail of his contract. He did not know that the rate of Kayum's commission was excessively high, or a big number. The explanation he was given for the high commission was to allow Kayum to recover his expenses over a number of years of work. He did not ask Kayum what his expenses were.

743 Then, asked whether he presently suspected Kayum used some of the money he was getting from commissions to pay government officials, Brady said that he was "a bit nervous that it might have happened", and he did not believe Kayum to be as reputable a person as he had thought. Asked why he thought that, Brady said he thought there were times when Kayum had misled him. He said he thought it was possible, but unlikely, that Kayum had used his commission to pay government officials, but "a lot of countries don't operate the way we operate."

744 Brady conceded that, looking at his email of 13 October, it did appear that Kayum was paying his commission to other people; but he did not know whether that was to people in the bank or their associates.

745 As far as Nepal was concerned, Brady said that he never suspected any wrongdoing by the Nepalese agent.

746 Bonnici questioned Brady at length about the Nepal fax. Brady said he could not recall seeing it before. Bonnici asked whether, having now seen it, Brady was aware of anything "untoward" in relation to the Nepalese agent or any government officials. Brady answered that he would have thought there was less likelihood of anything going on in Nepal, "but having seen this, I've got my doubts there too". Bonnici asked Brady whether he'd had any suspicions before Bonnici showed him the Nepal fax; Brady said he had not.

747 The account given in Brady's examination was largely exculpatory. However, it is the requirement to give answers, not the answers themselves, which has fundamentally altered his right to an accusatorial trial and to remain silent.

748 As with the other ACC accused, by that questioning, Brady has suffered the forensic disadvantage of being denied his fundamental right to defend the charges only on the basis of putting the prosecution to its proof and testing the strength of the prosecution evidence.

749 If any of the ACC accused has made voluntary disclosure of a version of events, they cannot claim that the ACC examination creates an accusatorial limitation arising from the giving of the same version of those events by compulsion.[286]

750 It makes no difference that the version disclosed voluntarily cannot be used in evidence (just as the coercive version cannot be used in evidence); it is the version's existence that is relevant, not the prosecution's knowledge of it, or ability to use it.

751 The CDPP's written submissions asserted that each of ACC accused made voluntary disclosure to AFP investigators prior to being charged; therefore, any prosecution advantage in knowing the ACC accused's account was legitimate. The written submissions contained sweeping generalisations about the claimed disclosure, which are not substantiated by the evidence (save in the case of Brady).

752 The evidence as to the extent of voluntary disclosure by each ACC accused is as follows.

753 On several occasions between late May 2010 and mid-2011, Leckenby's lawyers met with AFP and/or CDPP staff, with a view to seeing whether there could be a negotiated outcome. Although the content of the negotiations cannot be used at trial (as they are covered by privilege), the CDPP argues that they represent a voluntary disclosure of the matters raised in Leckenby's ACC examination.

754 The CDPP's written submissions allege that Leckenby's lawyers provided the AFP and CDPP with his version of events in the course of those negotiations; however, there is no evidence to support that claim. In particular, there is nothing before the court to suggest that anything substantial was disclosed by Leckenby or his lawyers about the events the subject of the charges. The highpoint for the CDPP in this regard is the meeting on 2 June 2010, at which there was some discussion about the strength of the prosecution case; however, it appears that very little was disclosed by or on behalf of Leckenby about the actual events. Otherwise, the discussions appear to have focussed on the possibility of an indemnity, and possible penalties.

755 The CDPP's written submissions asserted that Wong was not charged in respect of the matters the subject of the ACC examination, and there is therefore no relevant forensic disadvantage. That submission is unfounded. Wong was examined in relation to the Nepalese conspiracy, and has been charged in relation to that same matter.

756 The CDPP also asserts that there has been a relevant voluntary disclosure. Wong spoke to AFP officers informally on 1 February 2010, and again in an un-cautioned record of conversation on 7 April 2010, almost 8 months before his examination. However, there was no discussion about Nepal or the Nepal fax during either of his conversations with AFP officers; they involved discussions about Malaysia.

757 The CDPP says that Hutchinson gave a voluntary account in an un-cautioned discussion with police on 3 September 2010, before his ACC examination. The CDPP says that although the discussion is not admissible at trial, it still represents a relevant voluntary disclosure.

758 However, there is no evidence that Hutchinson made any relevant disclosure during that discussion. He appears to have indicated a willingness to participate in an ROI (subject to seeking his lawyer's advice), but not to have divulged details of his involvement in any relevant matter.

759 On 15 April 2010, Hutchinson made limited voluntary disclosure to Smith and Renwick, who attended at his house after Leckenby's examination. However, the AFP notes of that discussion are very general, and make no mention of the Nepal fax (which was central to Hutchinson's ACC examination). Even if Hutchinson made disclosure of certain matters during this informal discussion, it can only have been a small amount of what he said at his ACC examination, which ran for two days.

760 Brady voluntarily participated in an ROI on 6 and 7 October 2010, approximately 6 months after his ACC examination. Both his ROI and ACC examination transcript are very lengthy and detailed. I have not compared them in any great detail, as Brady's counsel conceded that the answers given during his voluntary interview were to the same general effect as the answers he had given at the ACC. I agree with the CDPP that this represents a voluntary disclosure of the matters otherwise disclosed by compulsion.

761 As will be discussed shortly, Brady was not aware at the time of his ROI that Smith, one of the AFP officers who was involved in conducting the ROI, had observed Brady's ACC examination. He would have been aware of that fact, had Sage complied with his obligations to inform Brady as to who was present at his examination. But it does not follow that Brady did not voluntarily choose to make a detailed disclosure to the AFP, which he thought would assist him.

762 During the committal proceedings, Brady's counsel cross-examined into evidence details from Brady's coercive examination testimony, so as to rely upon his account as exculpatory. Brady says he did so because he was forensically disadvantaged and constrained in his forensic choices, as a result of the AFP knowing his defences. It is not clear to me why that is said to follow, or why counsel could not have cross-examined based on the version he gave in his voluntary ROI.

763 As a result of his voluntary disclosure to the AFP, it is not clear what remaining forensic disadvantage or actual unfairness could be said to result from Brady's ACC examination.

764 I am satisfied that in the case of Hutchinson, Leckenby and Wong, any voluntary disclosure of matters was not enough to displace the actual unfairness faced by virtue of the ACC examinations. Many of the substantial matters that were disclosed during the ACC examinations in relation to Hutchinson, Leckenby and Wong have not otherwise been disclosed voluntarily.

765 On the other hand, Brady voluntarily participated in a formal ROI, in which he effectively made full disclosure of the matters previously disclosed in his examination.

766 Each of Leckenby, Wong and Hutchinson is now constrained in the conduct of his trial, by reason of the answers given on oath, in precisely the way envisaged by the majority in X7(1). To the extent that Gageler and Keane JJ in Lee(1) doubted that that would be a deprivation of a legitimate forensic choice, their obiter observations do not appear to have found favour with the other judges in that case, or in subsequent cases.

Using examination material to assemble the prosecution case

767 The ACC accused make a number of complaints about the way in which their examination material has been used to assemble the prosecution brief.

768 It is for the applicant for a stay to prove what use has been made of the examination material in the preparation of the prosecution case, in order to establish actual, rather than potential, prejudice. Such a test presents an almost insurmountable obstacle in a case such as this, in which so many investigating police have had access to examination material (either by virtue of their presence at the examinations, or by virtue of subsequent dissemination).

769 Pike said that he did not read any of the summaries produced after the ACC examinations, as he was receiving verbal briefings from Maddigan. In his witness statement, Pike asserted that "the ACC process had very little influence on the AFP's investigative focus". Similarly, Maddigan said that, with the exception of Leckenby's examination, the ACC material was "of little interest or value generally."

770 Pike's and Maddigan's evidence does not sit well with the documentary evidence, which suggests that obtaining and distributing the summaries and records of the examinations, and preparing transcript for them, was a priority for the AFP. I have discussed earlier some of the many communications between the AFP, CDPP and ACC regarding repeated requests for the timely distribution of all ACC examination materials to the AFP and CDPP. It was the AFP, not the ACC, who went to the trouble of preparing all the examination transcripts.

771 Summaries of ACC examinations produced by the ACC were circulated generally within the Operation Rune team, including to AFP officers who had not been present at the examinations.

772 Various AFP witnesses said they understood that the AFP was allowed to make derivative use of examination material, in order to generate further enquiries, target witnesses, and look at data holdings. I infer that it is highly probable that they did use it in that way; they thought there was nothing wrong with doing so, and the information would have been very useful.

773 However, the witness statements filed by the various AFP officers asserted that they had made no use of any ACC examination material, whether in preparing the briefs of evidence, considering the strength of the prosecution case, or deciding whether to lay charges.

774 Notwithstanding such general assertions about limited or no use of examination materials, there is some evidence to the contrary, which will be considered below.

775 I am satisfied that the AFP officers who attended the relevant examinations could not have put what they learned completely out of their minds, and would in fact have been significantly assisted (even if indirectly) by that knowledge in conducting the Operation Rune investigation. The degree to which they would have been assisted may have varied, depending on their roles in the examinations, and in the broader investigation and prosecution. Given the number of AFP members who attended the examinations, and the size of Operation Rune, it is extremely difficult, if not practicably impossible, to prove what happened in that regard.

776 The ACC accused are particularly concerned that the AFP used the knowledge they gained from the examination process, in order to guide their selection of documents for inclusion in the brief, from the tens of millions of documents seized by them. That complaint is made at both a general and a specific level.

777 For the purposes of Operation Rune, documents were obtained from a large number of sources, including from witnesses and from the execution of search warrants against various companies and individuals. This was a process that took place over many months, and involved both paper and electronic records.

778 At various times during the hearing, estimates were given as to the number of documents held by the AFP, which ranged from around 30 to 40 million, to more than 80 million, documents. The fact that nobody was even able to say with more precision than that, just how many documents the AFP actually holds, gives some indication of the scale of the documentary holdings.

779 Given the number of documents involved, an electronic search tool was required. Over time, the AFP placed all documents on an IT database called NUIX, which is key word searchable. All members of the Operation Rune team were encouraged to suggest potential search terms to be used in order to identify relevant documents from the NUIX system. The documents that were identified as a result of conducting a word search could then be categorised or marked for export, and subsequently exported for inclusion in the briefs of evidence.

780 Warrants were executed at Securency in November 2009, and at NPA in mid-March 2010. In each case, it took many weeks to load the seized material onto the NUIX database. According to Maddigan, electronic material seized from NPA did not become available for searching on the NUIX database until early May 2010 - that is after the examinations of Brady and Leckenby.

781 Sage was well aware that the AFP had done very little by way of searching or analysing their documentary holdings at the time of the first round of examinations; he understood there had been some difficulty in downloading or searching the electronic material. Sage said that at the time when he authorised Brady's examination, he queried whether the examination should wait until after the AFP had analysed the holdings. However, he went ahead with the examination anyway. He could not explain why he had done so; he assumed that he "must have been told something", but could not recall what it was.

782 By the time of the second round of examinations, documents had also been seized under search warrants served on a number of former or current Securency or NPA employees, and further electronic material had been provided voluntarily by Securency, NPA and the RBA. Very little analysis of that material had been undertaken prior to the examinations of Hutchinson and Wong.

783 Pike admitted that the AFP used information obtained from the compulsory examinations of the ACC accused, and other witnesses, to guide their selection of the documents to include in the briefs, from among the millions available to them. He agreed they were able to use the information to "refine and define" their searches on the NUIX database.

784 Both Pike and Maddigan stressed the significance of the documentary evidence obtained from searches conducted by the AFP. Maddigan said that the strength of the briefs of evidence prepared by the AFP came from the vast electronic materials. Pike's evidence went even further. Pike said that the material found on the computer databases of Securency and NPA was "the most significant influence on the charging decision and the focus of the investigation."

785 As the AFP regarded it as legitimate to use examination material in that way, no record was kept as to which searches were conducted as a result of the information provided by any particular examinee.

786 The specific forensic disadvantage said to flow from this broad use of examination information will be considered shortly. However, there is also a more particular complaint about the way in which the AFP were able to use examination material in assembling the prosecution case against the ACC accused.

787 During each of their examinations, Bonnici showed the ACC accused what the AFP regarded as incriminating documents, and asked them questions that the AFP wanted about those documents. On a number of occasions, the ACC accused replied that they could not remember seeing the document.

788 Pike accepted that if a witness said in an ACC examination that they could not remember seeing a particular document, the AFP could then go and search for evidence that the witness had in fact done so. Asked whether that is what he and his team in fact did, he replied "We may have done that on a very few occasions, perhaps a handful." After further questioning on the topic, Pike said he had "a vague recollection" of that happening, and "it may not have happened at all but I have got a recollection in the back of my head that it probably happened a couple of times." Pike said he could not recall specific instances of that occurring, or in relation to which accused it occurred. He was also not aware of any notes being made which recorded that occurring.

789 Pike's evidence as to how infrequently that was done highlights one of the major problems facing persons in the position of the ACC accused, in an application such as this. Unless investigators keep records of how and when they have used information that has been compulsorily obtained from an accused, it may be practically impossible for the accused to challenge the extent to which information has been used in the investigation or made its way into prosecution materials. Given Pike's resistance to making any admissions against the AFP's interests, I very much doubt that the information was only used to search for documents "a handful" or "a couple" of times, as Pike suggested. But how are the ACC accused to prove otherwise, as a matter of practical reality?

790 The prosecution case against all of the accused is largely a circumstantial one, based on the interpretation of documents. Showing that an accused sent or received particular documents is of fundamental importance to the prosecution case. Given that the AFP had done very little by way of searching or analysing the enormous number of seized documents before the ACC examinations, I have no doubt that the capacity to go and perform targeted documentary searches to look for evidence against the ACC accused would have given the AFP a substantial investigative advantage - one which it would not have had without the compulsory examinations.

791 It is possible that some information obtained from the ACC examinations was used, at least indirectly, by members of the Operation Rune team, in obtaining witness statements from other witnesses.

792 By way of example, the ACC accused point to the role played by Smith, the AFP officer responsible for compiling the brief of evidence for the Malaysian conspiracy, and obtaining some important witness statements.

793 After he left Brady's examination on 12 April 2010, Smith went and interviewed Kevin McConnell, NPA's Corporate Services Manager. Smith visited McConnell on five further days, in order to take his witness statement. Smith also took the statement of McDonnell's successor, Hood. He had initially interviewed Hood on 30 March 2010, but he spent another day with him on 16 April, a few days after Brady's examination.

794 The statements of each of McDonnell and Hood do touch upon Brady's role and responsibilities in the negotiations for the Malaysian bank contract, and NPA's dealings with Kayum, the Malaysian agent.

795 Having observed Brady's examination, Smith knew what Brady's defences were. He had an opportunity to tailor his questions, and decide which documents to show McDonnell and Hood, using that knowledge.

796 The CDPP says that the ACC accused have failed to demonstrate that Smith's attendance at Brady's examination was directly or derivatively used in procuring any witness statements, including those of Hood and McDonnell.

797 The ACC accused say, with some justification, that it is all but impossible to test to what extent Smith was influenced (even if unconsciously) by his knowledge of Brady's examination, in taking the statements of these two important witnesses.

798 It is also possible that some information obtained from the ACC examinations was used, at least indirectly, by members of the Operation Rune team in their later dealings with the ACC accused (particularly, in obtaining an ROI from Brady, and in negotiating with Brady and Leckenby).

799 Smith personally executed a search warrant at Brady's home on 6 October 2010. Smith asked Brady if he would participate in an interview under caution; he agreed to do so. Smith then conducted Brady's voluntary cautioned ROI on 6 and 7 October, for a total period of around 10 hours. Because of Sage's failure to disclose the presence of the AFP staff, Brady was unaware that Smith had secretly observed his ACC examination, and received a summary of his answers at the examination.

800 Smith said that Lewis was the primary interviewer of Brady; that it was Lewis who was responsible for preparing the interview plan and determining which documents would be put to Brady. That may be so, but once again, it is all but impossible to test to what extent Smith may have been assisted or influenced by the knowledge he had obtained at Brady's examination.

801 Maddigan also attended Leckenby's examination on 12 April 2010. On 13 April 2010, Maddigan informed Pike of the various admissions made by Leckenby in his examination, and that Leckenby broke down after being shown the Nepal fax. Pike said that, upon receiving that information, he determined that Leckenby should be approached to cooperate with the AFP, as it was likely that Leckenby would be charged if the AFP could obtain admissible evidence to corroborate the admissions made in his examination. Pike determined that the persons making the approach to Leckenby ought to be different to those who attended his ACC examination, however the information obtained from his ACC examination was the impetus to approach Leckenby with a view to charging him.

802 Material from the ACC accused's examinations was provided to the CDPP from time to time, in the context of obtaining legal advice from the CDPP about available options in the investigation and the prosecution of the charges.

803 For example, in September 2010, Pike discussed Leckenby's examination with CDPP staff in the context of asking for advice about the consequences of a suspect coming forward to confess, after having given a false account during an ACC examination.

804 In April 2012, after Brady had been charged, Pike asked Sewell for advice regarding whether the answers provided by Brady in his ACC examination would have any bearing on negotiations for Brady to enter a plea and cooperate with the AFP. Sewell prepared a memorandum of advice, dated 13 April 2012, which contained a comprehensive summary of matters arising in Brady's examination. Sewell circulated his memorandum to other CDPP staff, including Robertson, Kirne and Davidson, as well as to the CDPP himself.

805 The offer recommended by Sewell in the memorandum was later put to Brady's legal representatives. It is clear that, in this particular case, review and analysis by the AFP and CDPP of the answers provided by Brady at his ACC examination, as well as consultation between the two bodies about the ACC examination material, has been used by the AFP for the purpose of plea negotiations.

806 In February 2013, when asked by Sewell about whether it would be worthwhile for the CDPP to approach Wong's lawyers, Pike told him that the answers provided by Wong in his ACC examination bore little resemblance to the truth.

807 Sewell also had specific conversations with Pike regarding Leckenby's examination, including a conversation in which Pike told him about Leckenby's reaction when shown the Nepal fax. Pike's evidence is that he discussed Leckenby's examination briefly with the CDPP in September 2010 in order to contextualise statements made in correspondence with Leckenby's lawyers. He provided the CDPP with excerpts from the Nepal fax and informed them that it had been produced to Leckenby during the course of his examination and of Leckenby's response. Members of the CDPP were also involved in a meeting with Leckenby, his lawyers, and members of the AFP in April 2011, in which Pike gave a summary of the allegations facing Leckenby and the CDPP advised as to the strength of the evidence against him.

808 Those AFP officers who were involved in the laying of charges against the ACC accused said that information gained from the ACC examinations did not influence the decision to charge the ACC accused. They said the primary factor taken into account when determining whether charges should be laid was the legal advice obtained from the CDPP. That advice was based largely upon the briefs of evidence provided by the AFP, which were compiled and collated by the AFP officers involved in Operation Rune.

809 I accept that no ACC transcripts or summaries were contained in any of the briefs of evidence.

810 However, to the extent that information from the ACC examinations was used by the AFP to compile the briefs of evidence, particularly through searching for documents (as discussed above), the ACC examinations had some (albeit indirect) influence on the decision to charge the ACC accused.

811 Sewell was the CDPP lawyer responsible for preparing recommendations regarding the laying of charges in relation to the Indonesian, Malaysian and Nepalese aspects of the Operation Rune investigation. The ultimate decision to charge was made by the CDPP. Sewell believed that the CDPP's decision was based principally upon counsel's advice, however Sewell was involved in the decision-making process, and drafted advices to go to the CDPP.

812 Sewell said that the ACC materials, and his knowledge of Brady and Leckenby's examination materials, played no part in his recommendations to lay charges, or the decision to charge or directly indict any of the accused.

813 If any briefing papers to the CDPP, or any internal AFP documents, made express mention of examination material, it might be possible to prove that the material did play some role in the decision to charge. However, absent such an express mention, it is almost impossible to realistically test the AFP and CDPP's assertion that the ACC materials played no part in their decision making. For example, if the person(s) deciding whether or not to lay charges knows that the ACC accused, particularly Leckenby and Wong, made some admissions of wrongdoing in their examinations, it is not difficult to see how that may play a role (whether conscious or unconscious) in the decision to lay charges (or in the decision to directly indict accused who had been discharged at committal).

814 There has undoubtedly been some use of the ACC accused's examination material in the assembly of the prosecution brief. The clearest and most substantial use has been in using knowledge derived from the examinations to guide the AFP's selection of documents for inclusion in the brief, and their searches for evidence to prove the prosecution case against the ACC accused.

815 While it is likely, or possible, that information from the ACC examinations has been used in other ways (such as in taking witness statements) there are substantial practical obstacles to the ACC accused proving that fact.

816 Given the number of AFP officers who have been privy to the examination material, combined with the fact that they regarded all derivative use as permissible, it is probable that information from the examinations has permeated the brief in various ways.

817 I agree that the prosecution has gained an unfair forensic advantage as a result of the brief having been prepared, at least in part, using information derived from the ACC examinations.

818 The prosecution case relies upon inferring from a selection of documents that the relevant conspiracy existed and each accused was a party. In ordinary circumstances, the ACC accused could have challenged the proposition that the only inference to be drawn from the documents presented was one of guilt, by asserting that those documents were a biased, random, or incomplete selection from among the millions of documents available to the prosecution. However, in this case, the selection of documents was influenced by the investigators' knowledge of things said by the ACC accused during their examinations. That fact prevents their counsel from testing before a jury the basis upon which the documents were selected, or suggesting that the documents as selected fail to reveal the true facts.

819 I accept that this is a deprivation of a forensic choice to all of the ACC accused (including, possibly, Brady). It may not be as substantial a deprivation as the matters discussed earlier, but it is a deprivation nonetheless.

820 The CDPP says that, in so far as any forensic disadvantage has been established, it can be remedied by the removal from the prosecution team of all counsel and solicitors who have knowledge of what the ACC accused said in their examinations.

821 The ACC accused say that severing the head of the prosecution team would not deprive the body of the team of the forbidden knowledge, for two reasons:

(a) There has been an historical lack of control over access to the examination material within the CDPP. It is also implausible to think there is anyone within the current CDPP who is unaware of the current application and the reasons for it. Given those two matters, it is not possible to be confident that everyone at the CDPP has been insulated from the forbidden knowledge; and

(b) Furthermore, the investigators who have prepared the briefs of evidence (knowing what each of the ACC accused has said on oath), will be present, will give evidence, will liaise with witnesses, and will be in a position to suggest avenues of examination and tactical decisions to be made, at the trial.

822 Following the decision in Seller(1), more stringent storage and access measures were supposed to have been put in place regarding the ACC examination material.

823 I have already referred to the circumstances in which Sewell (the CDPP case officer with overall responsibility for Operation Rune) sought and obtained ACC examination material, contrary to an unambiguous direction from his superiors after the decision in Seller(1).[287] His inability to explain why he did that is unsatisfactory.

824 Sewell's evidence about what use he had made of examination material was also unsatisfactory. For example, in his initial affidavit, Sewell said he did not read the summary of Brady's examination, and did not recall discussing Brady's ACC examination with members of the AFP, despite having requested and been provided with transcripts and summaries of the examinations. After a number of documents were brought to his attention, Sewell subsequently swore a further affidavit, in which he acknowledged that he had read Brady's examination material, and had drafted the memorandum in relation to sentencing options for Brady, which summarised and drew on the answers provided by Brady in his ACC examination. Given an apparent misunderstanding of the task required of him, I accept that Sewell was honestly mistaken in drafting his original affidavit. But, without having found the documents that showed he was mistaken, the ACC accused would have had no ability to go behind his original assertion that he had not made use of Brady's examination material.

825 Kirne also said in his original statement that he had no recollection of any discussions with any person in relation to the ACC examinations, aside from a conversation with Pike, and one teleconference with CDPP staff. After a number of documents were brought to Kirne's attention, he changed his evidence to reflect that he had attended two meetings in which the ACC examinations were raised, as well as seeing email correspondence regarding Leckenby's reaction to the Nepal fax.

826 The examination transcripts of the ACC accused were circulated to at least four CDPP solicitors (Sewell, Robertson, Barrington and Holmes), before they were finally quarantined. They were, for a substantial period of time, saved in an electronic folder that was accessible to various members of the CDPP.

827 The ACC accused called for documents that would enable them to ascertain which CDPP staff had actually searched the electronic folder. That could not be easily done, as no audit trail function had been set on the IT programme. James McConnochie, the CDPP's IT Security Advisor, gave evidence about the difficulties that would be involved if one attempted to retrospectively search the CDPP electronic database, in order to ascertain that information. McConnochie said that performing such searches over an agreed period of time would take more than 5,250 hours to complete. Due to the practical impossibility of pursuing the call, it was not proceeded with. That is just one more example of the substantial problems confronting the ACC accused in testing the evidence in this case.

828 The ACC accused assert that it is implausible to think that there is anyone within the current CDPP who is unaware of the current application and the reasons for it; and therefore it is not possible to be confident that everyone at the CDPP has been "insulated from the forbidden knowledge." Even accepting that the current application may be widely known about within the CDPP, it does not follow that the contents of the ACC accused's examinations are widely known. Nor does it follow that steps cannot be taken to quarantine a future prosecution team.

829 I have found no dishonesty or questionable conduct on the part of anybody who has worked on this matter at the CDPP. I have no reason to doubt the CDPP's willingness or ability to ensure that new solicitors and counsel be engaged, who have no knowledge of examination materials received by previous lawyers.

830 There is considerably more substance to the ACC accused's concern that severing the head of the prosecution team will not deprive the body of the prosecution team of the forbidden knowledge. They say that in light of the AFP members' knowledge of the contents of the examinations, and questions surrounding the propriety of the investigators' conduct, it will be particularly difficult for them to secure a fair trial.

831 In so far as the AFP officers are concerned, the ACC accused say that they will continue to be involved by giving evidence, liaising with witnesses, and suggesting avenues of examination and tactical decisions to be made at any trial.

832 The CDPP does not dispute that this is likely to occur. Rather, the CDPP argues that the ACC accused cannot prove at this time that, if that happened, any trial would necessarily be unfair, or that there would be nothing the trial judge could do to prevent any such unfairness.

833 In the various cases that I have discussed, in which an investigator had been present during the compulsory examination and was going to have an ongoing role in the prosecution (whether as a witness or otherwise), the size of the problem confronting the accused was relatively confined. For example, in the Seller cases, the scope of Tan's evidence was known, its significance in the prosecution case was able to be assessed, and an order was made that Tan not be allowed to give evidence; quarantining was not difficult in that case.

834 There are substantial practical problems in trying to undertake such an assessment in the present case. Some AFP officers, such as Kocalidis, the primary informant, are likely to be more important witnesses, and to play a more significant role in the ongoing prosecutions, than others. However, I have not been taken to the proposed witness statements for each of the 17 AFP officers who attended one or more of the examinations of the ACC accused. Furthermore, given the volume of material in the briefs, I am not in a position to assess the likely importance of their evidence to the prosecution case, in order to come to any conclusion as to the degree of likely unfairness at this stage. The sheer scale of what has happened here, as a result of Sage's failure to ensure that proper protective measures were put in place, has placed an almost impossible forensic burden on the ACC accused in terms of proving specific unfairness.

835 In saying this, short of creating a new investigative team and conducting a new investigation, it appears unlikely that sufficient quarantining could occur to mitigate the permeation of the ACC knowledge throughout the AFP investigation and subsequent brief to the CDPP.

836 Although extremely broad and general in their terms, the financial crimes and money laundering determinations were not invalid, by reason of a lack of specificity.

837 Nor have the ACC accused persuaded me that the financial crimes determination was invalid, because of a failure by the ACC board to direct its mind to the correct criterion (being the criterion in s 7C(3)).

838 The ACC is a special investigative body. In order to carry out its functions in dealing with serious and organised crime, the ACC Act has granted the ACC extraordinary powers, including compulsory examination powers, which are unavailable to bodies such as the AFP for their own investigations. Those powers include the power to compel a person to incriminate themselves, through answering questions or producing documents.

839 The fact that determinations can be drafted as broadly as these two, in order to enable the ACC to carry out its special functions, only serves to highlight the importance of the examiner acting independently and rigorously, in relation to any exercise of the compulsory examination powers.

840 An examiner's power to conduct an examination and summons a witness can only be exercised for the purposes of "a special ACC operation/investigation". As a matter of statutory construction, the ACC was conducting a special ACC investigation at the times when the financial crimes and money laundering determinations were operative.

841 The determinations authorised special investigations into money laundering; they did not authorise investigations into foreign bribery. However, money laundering is an offence that is based on the existence of a predicate offence; in this case, the relevant predicate offence was foreign bribery. Accordingly, conducting compulsory examinations into foreign bribery was within the ACC's power under the determinations.

842 The ACC is required, as far as practicable, to work in co-operation with other law enforcement bodies. It also has various obligations to disclose information to such bodies. However, those general provisions do not empower it to make its compulsory examination powers available to other bodies, solely for their own purposes; and for good reason - that would impinge on an accused person's right to silence.

843 As a matter of fact, at the time of the examinations of the ACC accused, the ACC was not conducting its own investigation (into money laundering or foreign bribery), in connection with Securency or NPA. It had referred the foreign bribery allegations to the AFP the previous year. No ACC staff were working on anything to do with those matters, although there were "projects" on foot at an ACC management committee level.

844 After the Operation Rune examination program was completed, there is no evidence that the ACC did anything with the examination product, other than provide it to the AFP and CDPP.

845 There is much force in the ACC accused's submission that the ACC was essentially a hearing room for hire, in relation to the compulsory examinations of the Operation Rune witnesses. The ACC provided the examination facility - the examiner, counsel assisting, and legal and administrative support - for what was, in reality, the AFP's investigation.

846 No doubt there were a number of purposes for the examinations, from the AFP point of view, including general investigation into the Operation Rune matters. But, in so far as some of the examinees (such as the ACC accused) were regarded as persons who may be criminally involved, rather than merely witnesses, one of the AFP's purposes was to use the compulsory examination process to assist in any future prosecution of the examinee, in various ways. First, it is clear that the AFP wanted to lock them into a version of events on oath, to prevent them from providing an alternative version at their trial. Secondly, it would assist the AFP to know what to look for in assembling briefs for the prosecution. The AFP (incorrectly) regarded both of those as legitimate purposes.

847 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.

848 It is a necessary incident of giving evidence under compulsion at such an examination that a witness will be "locked in" to some extent. That may not be a problem in itself, provided that appropriate measures are taken to ensure that any statutory protective provisions, designed to protect an individual's right to a fair trial, are utilised or enforced appropriately.

849 The entire examination process was undoubtedly driven by the AFP. They chose which witnesses would be called, and when (within the window of time that the ACC provided). Sage did not query any of the summons requests. His "reasons" for issuing the summonses involved no more than cutting and pasting from information provided by the AFP, via the ACC staff.

850 The AFP prepared the briefing papers, which identified the topics and documents about which they wished to have the witnesses examined.

851 Whether or not the ACC accused fell within the technical definition of a "protected suspect", or were persons who were "likely to be charged", is irrelevant for present purposes. At the time of their examinations, each of them was clearly regarded as a suspect by the AFP. They had all been offered, and declined to participate in, a cautioned ROI. Some of them had also been offered statutory sentencing discounts if they pleaded guilty.

852 Sage was well aware that they were regarded as suspects, and that they had declined to participate in cautioned ROIs.

853 Had Sage turned his mind to the requirements of s 25A(9), it should have been abundantly clear that each ACC accused was a person who "may be charged" and, accordingly, a person entitled to the benefit of the protective provisions in s 25A.

854 At no time, before or since these examinations, has there been any judicial authority which has suggested that the words "may be charged" mean anything other than their ordinary and natural meaning. The debate that had been going on in the authorities before X7(1), about whether or not a person could be examined about the subject matter of pending charges, simply had no bearing on the meaning of the words "may be charged."

855 Section 25A(9) required Sage to make a non-publication direction if, not to do so, might prejudice the fair trial of the ACC accused. In deciding the scope and content of such a direction, Sage should have adopted a careful approach, reflecting the purpose for which the duty to make such a direction was imposed. A decision to publish transcripts or documents, which should have been the subject of such an appropriate direction, would be a decision beyond power.

856 Section 25A(9) was not the only reason why Sage was required to consider the possible effects of compulsory examination on the fairness of the ACC accused's trial. Section 25A(3) required him to determine who should (and, it would follow, who should not) be present at the private hearing. It could set at nought the protection afforded by s 25A(9), if persons associated with the investigation or possible prosecution were present.

857 There were at least six AFP officers present at each of the examinations. A total of 17 AFP officers observed one or more of the examinations of the ACC accused. This represented a substantial proportion of the Operation Rune investigation team in April and November 2010.

858 Sage did not turn his mind to the question of whether or not it was appropriate for the investigating police to be present. He was not told, and made no enquiry, as to what role they did or might play in relation to the investigation, arrest or prosecution of any of the ACC accused. He simply signed the authority documents put in front of him.

859 In no case prior to these examinations had any court suggested that it would be permissible for investigating officers to attend the examination of someone who fell within the scope of the protective provisions. The question appears not to have arisen, because of the careful and proper steps that examiners had taken in other cases, to quarantine the examination process from those investigating the witness' own offending. Before the examinations of the ACC accused, Sage himself had made strict quarantining orders in the case of ABC v Sage.

860 Sage also did not tell the ACC accused that the investigating police were present, watching their examinations from elsewhere in the ACC. His failure to do so does not involve statutory illegality (either because the AFP officers were members of staff of the ACC, or by virtue of s 25A(8) of the ACC Act). But it appears that he had simply not turned his mind to the requirements of s 25A(7). Asked to explain why he had not informed the ACC accused of the investigators' presence, he resorted to saying that it was his practice not to do so. Sage would often refer to his "practice", as if that were a legitimate substitute for turning his mind to his specific statutory obligations.

861 Quite remarkably, both Sage and Bonnici said that they would have told an examinee who else was present, had they been asked. How an examinee was meant to guess that there might be people secretly viewing their examination, so as to ask the right question, was never explained. Section 25A(7) imposes a positive obligation on an examiner to make the relevant disclosure, not an obligation to disclose only if asked.

862 What happened in relation to Sage's non-disclosure of the presence of AFP officers is yet another example of his reckless indifference to his statutory obligations, in relation to examinees who were clearly entitled to the benefit of the protective provisions.