Curtis v R

Supreme Court of NSW|2014-10-10|Before: Fullerton J

Solicitors: Clifford Chance (Applicant) Solicitor for the Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2013/12117

The arguments in summary 4The applicant's claim for relief involves acceptance of the proposition that to ensure that his trial is conducted in accordance with the basal principles of an accusatorial system of criminal justice, most recently identified by the High Court in Lee v The Queen [2014] HCA 20; 308 ALR 252, it is essential that those who have or might have had direct or derivative access to his s 19 examination transcript have no further involvement with his forthcoming trial. 5The respondent's opposition to the grant of a temporary stay (consistent with its refusal to cede to the request by the applicant's lawyers in a lengthy exchange of correspondence from January 2014 that a new prosecution team be appointed to avoid the risk of the trial miscarrying) is squarely based upon what is asserts is clear authority in the ASIC Act (particularly ss 18(2), 49(1), 49(2), 68, 76 and 79) for information obtained from a compulsory examination conducted under s 19(2) to be made available to the CDPP and to the counsel they retain, for the purposes of the trial, or in preparation for it, as they see fit. 6For that reason, so it was submitted, Lee v The Queen (2014) is distinguishable. The High Court at [51] made it clear that it was the wrongful release to the prosecution of the accused's evidence obtained under compulsion in the absence of any legislative authority in the Crime Commission Act 2012 (NSW) for the alteration of the position of the prosecution vis-a-vis the accused in an accusatorial system of criminal justice that resulted in a miscarriage of justice. The respondent further submitted that because the ASIC Act provides legislative authority for the prosecution to have an accused's s 19 examination transcript, there is no scope for this Court, in the exercise of the discretion that might attract the grant of a temporary stay of the trial of an accused to avoid the risk of unfairness, to make orders requiring the appointment of persons to a new "prosecution team", or for the issue of a temporary stay of the applicant's trial until those that have access to the transcript are "quarantined" from involvement in the trial. 7The respondent submitted that if Parliament has not provided expressly in the ASIC Act for a modification of the now settled principle that an accused cannot be compelled to provide information or assistance to the Crown, and the corollary that an accused is entitled to insist on the Crown proving its case without any such assistance (a proposition which was impliedly accepted by senior counsel for the respondent in oral argument) then, when the ASIC Act is properly construed, it has done so by words of necessary intendment or clear implication. 8Whether that is so, is what the applicant's senior counsel described as "the focal and narrow question" for decision on the motion. He submitted that the construction of the ASIC Act for which the respondent contends, ultimately drawn from general words gathered from disparate provisions in the ASIC Act, does not derogate from the "rights, privileges and immunities" that are fundamental features of accusatorial criminal justice under the general law because they do not, in their terms or in their statutory context, point inevitably to that conclusion. In Daniels Corporation International Pty Ltd v Australian Competition & Consumer Commission [2002] HCA 49; 213 CLR 543 at [39] McHugh J, in considering whether s 155 of the Trade Practices Act 1974 (Cth) authorised the production of documents to which legal professional privilege attaches said: ... It is an elementary rule of statutory construction that courts do not read general words in a statute as taking away rights, privileges and immunities that the common law or the general law classifies as fundamental unless the context or subject matter of the statute points irresistibly to that conclusion... 9At [134] in Daniels Corporation International Pty Ltd Callinan J cited the following passages from Coco v The Queen (1994) 179 CLR 427 at 437-438 as an endorsement of that same approach: ... General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. ... The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize that the test is a very stringent one... See further Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269 (per McHugh J at [36]-[39]); Lehman Brothers Holdings Inc v City of Swan [2010] HCA 11; 240 CLR 509 (per Heydon J at [66]). 10The applicant also submitted that the authorities upon which the respondent relied in support of the construction of the ASIC Act for which it contended (in particular the consideration given to ss 68(3) and 76 of the ASIC Act in R v Catena (No 3) 2013 WASC 97), do not survive close analysis since the decision in that case involves a misunderstanding of Smith v The Queen [2007] WASCA 163; 35 WAR 201; 175 A Crim R 528 which it purports to follow and it is, in any event, in conflict with Lee v The Queen (2014) and should not be followed. 11The applicant advanced the further submission that even were I satisfied that the sections of the ASIC Act relied upon by the respondent do convey a legislative intention that in the prosecution of breaches of the corporations legislation on indictment the CDPP are entitled to be provided with an accused's examination transcript, the respondent has failed to establish that its dissemination to those who are to prosecute the applicant at his trial was referable to any of the provisions of the Act upon which reliance was placed. Counsel submitted that to the extent that the respondent has made out a theoretical case entitling the current prosecution team to access the applicant's examination transcript (which was not conceded), a temporary stay of his trial should be granted in the exercise of the Court's discretion to ensure against the risk that his trial would be rendered unfair, in circumstances where the CDPP makes no case that would justify it having access to the examination transcript for the purposes of the pending trial, or that it has required access in the past in preparation for trial, for any legitimate forensic purpose. 12The grant of the temporary stay on this basis was said by the applicant to be commensurate with the need for this Court to ensure a fair trial according to law, and that where the Crown refuses to discharge their overriding obligation to prosecute fairly, the Court is obliged to act to ensure that a trial is conducted fairly, and that a temporary stay of the applicant's trial will ensure that overriding objective is achieved in this case.

The course of the investigation and the commencement of proceedings 13In March 2009, the applicant was served with a notice pursuant to s 19 of the ASIC Act requiring him to attend an examination in exercise of ASIC's investigative functions under s 13(1) of the Act. The examination was conducted by two ASIC investigators on 24 March 2009. Dr Higgins of counsel and the applicant's solicitor were in attendance. 14The applicant invoked the privilege against self-incrimination provided for in s 68(2) of the ASIC Act in response to particular questions asked of him during the examination, each of which, under s 21(3) of the Act, he was required to answer. 15The applicant was served with a Court Attendance Notice on 13 January 2013 charging him with the conspiracy to commit an insider trader offence the subject of his pending trial. The consent to commence proceedings for an offence of conspiracy pursuant to s 11.5(8) of the Criminal Code (Cth) was signed on 2 January 2013 by Mr Bromwich SC, the Commonwealth Director of Public Prosecutions. 16A transcript of the examination was supplied to the applicant's lawyers as provided for in s 25(1) of the Act. Section 25 of the ASIC Act provides: Giving to other persons copies of record (1) ASIC may give a copy of a written record of the examination, or such a copy together with a copy of any related book, to a person's lawyer if the lawyer satisfies ASIC that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related. (2) If ASIC gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, must not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding: (a) use the copy or a copy of it; or (b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy's contents. Penalty: 10 penalty units or imprisonment for 3 months, or both. (2A) Subsection (2) is an offence of strict liability. (3) ASIC may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of the examination, or such a copy together with a copy of any related book. 17The examination transcript, or a summary of it, was also provided to or read by officers of ASIC involved in the investigation which culminated in the applicant being charged, including by solicitors and staff at ASIC and, at some later time, by officers of the CDPP and prosecuting counsel. 18There was no evidence before me as to when that dissemination occurred. In particular, there was no evidence as to whether it was before the issue of the Court Attendance Notice, in the process of seeking advice in contemplation of the conspiracy charge being laid, or after the charge was laid. Further, in so far as concerns the members of the prosecution team, there was no evidence before me as to the precise circumstances in which they were provided with the examination transcript or the particular purpose (to the extent that one could be identified) for which it was sought by them or provided to them, or any use which has since been made of its contents, or any use which might be made of its contents at the applicant's trial. Although s 25(3) provides for ASIC to supply a copy of the examination transcript to "a person" subject to "such conditions (if any) as it imposes", there was nothing put by the respondent on the motion to suggest that the applicant's examination transcript was "given" to "a person" in the CDPP, conditionally or unconditionally, pursuant to that provision. (I note that s 26 provides that where a transcript is given on condition under s 25(3) and that condition is breached, penal consequences are provided for. A breach of s 25(3) is an offence of strict liability.)

The evidence on the motion 19In support of the grant of the temporary stay of his trial the applicant relied upon an affidavit from his instructing solicitor in which the solicitor deposes to the fact that many of the questions asked of the applicant at his examination and answered under the claim of privilege, related to matters relevant to issues in his trial, including some matters the proof of which are necessary to sustain the conspiracy charge. Other questions related to the defence that the applicant will advance at his trial in answer to that charge. The solicitor's evidence was not the subject of challenge. He was not required for cross-examination. 20In written submissions the respondent made no concession that the applicant would or might be prejudiced by his examination transcript having been made available to the CDPP and the prosecution team, or that the fairness of his trial would or might be put at risk by that having occurred. 21The submission was also put that the evidence of the applicant's solicitor amounted to nothing more than a "bare expression of opinion" that there was an advantage to the prosecution and a disadvantage to his client from the prosecution team having been provided with the examination transcript or a summary of it. There was, however, no challenge to the solicitor's evidence that questions related to proof of the charge and that material relevant to his defence had been revealed at the examination at which he was present. Further, as his solicitor deposes in his affidavit, in the lengthy exchange of correspondence which preceded the filing of the motion, neither ASIC nor the CDPP has endeavoured to meet the claims, advanced on the applicant's behalf in that correspondence, that he will be prejudiced at his trial by the prosecution team having access to his examination transcript. In particular, no claim is made that the content of the examination is, from the Crown's perspective, irrelevant or that it is of no forensic significance in the presentation of the Crown case at trial or in anticipating any defence case that may be advanced at his trial (cf Bartlett v The Queen (No 10) [2014] WASC 277 where at [56] EM Heenan J distinguished Lee v The Queen (2014), inter alia, on the basis that there was no evidence that the authorised disclosures of the compulsory examination of the accused under the Australian Crime Commission Act 2002 (Cth) might prejudice the fair trial of the accused, or that in doing so there was a departure in a fundamental respect from the type of criminal trial which the system of justice requires in an accusatorial system of justice). 22Neither party tendered a copy of the examination transcript or any summary of it in the proceedings before me. The respondent's senior counsel did not address any oral submissions in response to the applicant's oral argument to any potential (or lack of it) for the applicant's answers given under compulsion to undermine his right to a fair trial. He did not advance any submission to the effect that there was no forensic advantage to the CDPP by having the examination transcript in preparation for trial or for use in the trial itself, as might have been expected given the evidence from the applicant's solicitor that in his assessment matters material to his client's defence were the subject of compulsory questioning. In the submission of senior counsel for the respondent, the applicant's contention that the Crown has secured an "unfair forensic advantage" because it has been supplied with the examination transcript, or that the applicant's trial will be productive of "unfairness" by that fact is a submission devoid of content where the ASIC Act authorises what is complained about. 23In addition to what the applicant relied upon as uncontradicted evidence that the conduct of the applicant's trial is at risk of being compromised to his prejudice by the prosecution having access to his examination transcript, the applicant submitted that Lee v The Queen (2014) is authority for the proposition that his right to a fair trial is presumed to be undermined by the fact that the prosecution has been provided with the examination transcript where he was compulsorily examined about the matters to which his solicitor deposes in his affidavit, irrespective of the precise nature of the material disseminated to the prosecution team or the timing of its dissemination relative to the issue of the Court Attendance Notice and his pending trial. At [43] the High Court said: 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 appellants' 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. At [46] the Court described the trial of the appellant as one where "the balance of power shifted to the prosecution". 24Because the grant of the temporary stay is limited to ensuring that those who are to prosecute the applicant at his trial are quarantined from exposure to his examination transcript where they had no statutory entitlement to receive it (there being no application for a permanent stay or any declaratory relief as to limits to which compulsory questioning might extend in an examination under s 19 of the ASIC Act where the bringing of a criminal charge is in contemplation), in the applicant's submission it is implicit that he is not required to establish that a fair trial on the proposed indictment will be in fact undermined (cf R v Seller [2013] NSWCCA 42; 273 FLR 155 at [104]-[110]). It is sufficient that there is a risk of unfairness that the grant of a temporary stay will protect against, a measure to which the High Court in Lee v The Queen (2014) regarded as both necessary and appropriate (see [44]).

The ASIC Act 25Senior counsel for the respondent referred to ss 17 and 18 of the ASIC Act as representative of the overall structure of the Act and what the respondent ultimately submitted was the authorised disclosure of an examination transcript to the CDPP under s 19. Those two sections concern the statutory obligation imposed on ASIC at the conclusion of an investigation under s 13 into, inter alia, a suspected contravention of the corporations legislation or a contravention of a law of the Commonwealth or a State or territory, namely where (i) it concerns the management or affairs of a body corporate or managed investment scheme; or (ii) where it involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to financial products. Those sections provide: 17 Final report on investigation (1) At the end of an investigation under section 13 or 15, ASIC may prepare a report about the investigation and must do so if the Minister so directs. (2) At the end of an investigation under section 14, ASIC must prepare a report about the investigation. (3) A report under this section must set out: (a) ASIC's findings about the matters investigated; and (b) the evidence and other material on which those findings are based; and (c) such other matters relating to, or arising out of, the investigation as ASIC thinks fit or the Minister directs. 18 Distribution of report (1) As soon as practicable after preparing a report under this Division, ASIC must give a copy of the report to the Minister. (2) Where a report, or part of a report, under this Division relates to a serious contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, ASIC may give a copy of the whole or a part of the report to: (a) the Australian Federal Police; or (b) the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002 ); or (c) the Director of Public Prosecutions; or (d) a prescribed agency. (3) Where a report, or part of a report, under this Division relates to a person's affairs to a material extent, ASIC may, at the person's request or of its own motion, give to the person a copy of the report or of part of the report. (4) The Minister may cause the whole or a part of a report under this Division to be printed and published. ... 26Counsel also referred me to s 127 of the Act which deals expressly with the authorised use and disclosure of information given to ASIC in connection with the exercise of its statutory powers and functions. 127 Confidentiality (1) ASIC must take all reasonable measures to protect from unauthorised use or disclosure information: (a) given to it in confidence in or in connection with the performance of its functions or the exercise of its powers under the corporations legislation (other than the excluded provisions); or (b) that is protected information. (1A) Disclosing summaries of information or statistics derived from information is authorised use and disclosure of the information provided that information relating to any particular person cannot be found out from those summaries or statistics. (2) For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the Commonwealth or a prescribed law of a State or internal Territory is taken to be authorised use and disclosure of the information. ... (3) For the purposes of subsection (1), the disclosure of information by a person for the purposes of: (a) performing the person's functions as: (i) a member, staff member or ASIC delegate; or (ii) a person who is acting as a member or staff member or who is authorised to perform or exercise a function or power of, or on behalf of, ASIC; or (b) the performance of functions or services by the person by way of assisting an ASIC delegate; is taken to be authorised use and disclosure of the information. ... (4) Where the Chairperson is satisfied that particular information: (a) will enable or assist an agency, being CAMAC, the Panel, the Disciplinary Board, the FRC, the Review Board or any other agency within the meaning of the Freedom of Information Act 1982, to perform or exercise any of the agency's functions or powers; ... ... 27Although there is express provision in s 127(4)(a) of the ASIC Act for the Chairperson of the Commission to disclose information given to ASIC in connection with the performance of ASIC's statutory functions or in exercise of its powers to the CDPP (the CDPP being an agency within the meaning of the Freedom of Information Act 1982 (Cth)), and express provision in s 18(2)(c) for a final investigation "report" which relates to a serious contravention of the law of the Commonwealth to be distributed to the CDPP, no reliance was placed upon either provision as the actual source of authority under which the CDPP was provided with the applicant's examination transcript or the justification for it to be given to the prosecution team. 28Rather, ss 18(2)(c) and 127(4)(a) were relied upon as being consistent with what was said by the respondent to be the authorised disclosure of information obtained by ASIC in connection with the performance of its functions and the exercise of its powers generally, and that both sections provide further support for the authorised disclosure of an examinee's examination transcript to the CDPP in its role as prosecutor being necessarily implicit in the operation of the Act as a whole. 29I am not persuaded that the authority to provide a final report of an investigation to the CDPP as one of the agencies to whom it may be distributed under s 18 (in its discretion) or that the Chairperson's authority under s 127(1) and/or s 127(4)(a) to disclose information "given" to it (in the Chairperson's discretion) should be construed as impliedly authorising the provision of an examination transcript to the CDPP as prosecutor, or to those the CDPP retains to have carriage of a criminal prosecution on indictment for its unqualified use in a criminal trial. There is nothing in either provision that either expressly or impliedly refers to the examination transcript per se. The fact that a report under s 18(3)(c) must set out the evidence upon which the findings of the investigation was based does not require the transcript to be included, much less the answers given subject to the privilege to be disclosed, even were that thought necessary for reporting purposes. 30The respondent also emphasised that ASIC (and the ASIC Act) are in important respects unlike other investigative agencies established under both Federal and State legislation which also have the power to compel the attendance of a person and to have the person submit to a compulsory examination and/or to require the production of documents. Not only do the legislative objects under other legislative schemes differ in material respects from the ASIC Act (for example, the Australian Crime Commission Act (Cth) and the Crime Commission Act (NSW) have, amongst their statutory objects and functions, facilitating the investigation into organised crime and other serious criminal activity and the collection and dissemination of criminal information and intelligence - see s 7A of the Australian Crime Commission Act (Cth) and s 3 of the Crime Commission Act (NSW)) but, as a quid pro quo against the compulsory acquisition of information from persons suspected of engaging in serious or organised criminal activity under those Acts, State and Federal Parliaments have invariably provided a safeguard against the erosion of the right to a fair trial of a person who has been compulsorily examined, by a statutory prohibition against the dissemination of that information to prosecuting authorities in the event that the person examined has been or is to be charged (see s 25A(9) of the Australian Crime Commission Act (Cth) and s 13(9) of the Crime Commission Act (NSW)). 31In X7 v Australian Crime Commission [2013] HCA 29, (2013) 248 CLR 92, it was the exercise of the power under s 25A of the Australian Crime Commission Act to compulsorily examine a person who had been charged with a criminal offence about the matters the subject of the pending trial that was declared by the High Court to be contrary to law. The majority (Hayne, Kiefel and Bell JJ) held that there was nothing in the Australian Crime Commission Act (Cth) which abrogated the principle, inherent in an accusatorial system of criminal justice, that it is for the Crown to prove the guilt of the accused without the accused being obliged to assist in that process. That being the case, their Honours held that it was not to the point that the information given under compulsion had not been disseminated in compliance with s 25A(9) of the Act, it was the questioning itself that was unlawful (albeit that it was undertaken consistent with prevailing authority at that time - see [18] of R v X [2014] NSWCCA 168). In contrast, in Lee v The Queen (2014), while the compulsory questioning of two people under the Crime Commission Act (NSW) (neither of whom had at that time been charged) was not unlawful, it was the subsequent dissemination of material for use by the prosecution in the trial of the examinee/accused, contrary to the prohibition against disclosure in s 13(9) of that Act, that was held to be for a patently improper purpose, namely the ascertainment of the applicant's defence, and for that reason was productive of a miscarriage of justice. 32The respondent submitted that, in contrast to both s 25A(9) of the Australian Crime Commission Act (Cth) and s 13(9) of the Crime Commission Act (NSW), under the ASIC Act there is no prohibition against the dissemination of information compulsorily acquired by ASIC in the course of an investigation to prosecuting authorities, or those involved in a prosecution for use by them as they see fit in a prosecution of that person. In the respondent's submission, this is a crucial distinction rendering Lee v The Queen (2014) readily and materially distinguishable from the situation that obtains where a person is compulsorily examined under s 19 of the ASIC Act. 33That the Parliament has not provided a statutory prohibition against disclosure in the ASIC Act is said by the respondent to be consistent with there being no regulation in the Act on the use of an examination transcript by ASIC or the CDPP (including any prosecution team assembled to prosecute a person for an offence against the Corporations Law). It is only the admissibility of the transcript into evidence that is regulated. That, it is said, is made manifest by the inclusion of Division 9 of the ASIC Act, which is concerned with the evidentiary use of material obtained under compulsion. As senior counsel for the respondent expressed it, and succinctly, there can be no question of the admissibility into evidence of a statement made in an examination transcript at the trial of the examinee without the transcript first being disclosed to the prosecutor who may wish to argue for its admission. 34That proposition, and the construction of ss 68, 76 and 79 as the operative sections within Division 9 of the ASIC Act upon which it is based, seem to me to be fairly described as the mainstay of the respondent's submission that the Parliament has, by necessary intendment or implication, authorised disclosure to the CDPP of the applicant's examination transcript. If it be the case that the legislature must be taken to have intended that the CDPP (as the body having the responsibility of prosecuting an offence against the corporations legislation on indictment) have an unqualified statutory entitlement to the information obtained compulsorily under s 19 of the Act, the respondent submitted that it must follow that there is no limitation on the use of the information by the CDPP for its legitimate forensic purposes, including the preparation of the Crown case for trial, styling its approach to proof of guilt in light of what it knows of the accused's case, including meeting any defence disclosed by an examinee under compulsory examination, or countering, in the Crown case, any explanation that may be raised generally in the accused's defence at trial. 35The applicant submitted that the respondent's analysis proceeds on a fundamental misinterpretation of the application of Division 9 in a trial of an accused in the position of the applicant, where he is to be tried for an offence which does not involve or include an element of falsity in respect of any statement made under compulsory examination. 36Unsurprisingly, the parties addressed the intended operation of Division 9 of the Act in some detail. Those sections, however, need to be considered in the context of the Act generally, and s 19 in particular. 37Section 19 is invoked where ASIC, on reasonable grounds, suspects or believes that someone can give information relevant to a matter that it is investigating, or is to investigate, under Division 1 of the Act, including, relevantly so far as this case is concerned, a contravention of the corporations legislation under s 13(1)(a). 38Where that criterion is satisfied, s 19(2) permits ASIC, by written notice in the prescribed form, to require the person: (a)to give to ASIC all reasonable assistance in connection with the investigation; and (b)to appear before a specified member or staff member for examination on oath and to answer questions. 39Under s 21(3) of the Act, the privilege against self-incrimination is abrogated such that an examinee may be compelled to answer questions put by the inspector relevant to the matter being investigated even if the answer may tend to incriminate the person (or expose them to a penalty). Failure to comply with a requirement to answer a question is an offence under s 63(1). Subject only to the examinee discharging the evidential onus under s 63(5)of establishing a reasonable excuse for refusing to answer a question put by an investigator, a failure to comply with a requirement to answer is an offence under s 63 of the Act for which a penal sanction is provided. Section 64 also provides that it is an offence for a person to give information or make a statement in the course of an examination under s 19 that is false or misleading in a material particular, breach of which is also an offence under the Act which attracts penal consequences. 40Section 22 provides that the examination must take place in private with the examiner (described in s 20 as "the inspector") entitled to give directions about who may be present. Although the class of persons who may be present is not defined, s 22(2) provides that a person must not be present unless they are member of ASIC, a staff member approved by ASIC, the applicant's lawyer and any other person entitled to be present at the direction of the inspector. 41Sections 24 and 25 provide expressly for a record of the examination to be made, which must be provided to the examinee and may be given to an examinee's lawyer subject to the lawyer's use of the record in connection with preparing, beginning or carrying on proceedings in respect of a matter to which the examination related. As noted above, a penal sanction is provided for if a copy of the record is published or communicated to another person. 42Counsel for the applicant submitted that s 22 is directed to ensuring that the dissemination of answers given under compulsory questioning is carefully contained and that the material disclosed by an examinee is available only to those nominated by the inspector as entitled to be present at an examination. This is said to be in recognition of the fact that the information given under compulsion may be adverse to the interests of the person being examined, to the extent of constituting an express or implied admission of criminal conduct. 43The respondent accepted that whilst s 22 evinces a legislative intention that an examination be conducted in private at the investigative stage (as much in recognition of the position of the examinee as it is for the integrity of the investigation), this is overtaken by s 49 which requires ASIC to consider the examination transcript in deciding whether proceedings for the prosecution of a criminal offence should be commenced.

Section 49 of the ASIC Act 44Section 49 is in the following terms: ASIC may cause prosecution to be begun (1) This section applies where: (a) as a result of an investigation; or (b) from a record of an examination; conducted under this Part, it appears to ASIC that a person: (c) may have committed an offence against the corporations legislation; and (d) ought to be prosecuted for the offence. (2) ASIC may cause a prosecution of the person for the offence to be begun and carried on. (3) If: (a) ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or (b) the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters; ASIC may, whether before or after a prosecution for the offence is begun, by writing given to the person, or to an eligible person in relation to the body, as the case may be, require the person or eligible person to give all reasonable assistance in connection with such a prosecution. ... (3A) An offence under subsection 63(3) relating to subsection (3) of this section is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (4) Subsection (3) does not apply in relation to: (a) the person referred to in subsection (1); or (b) a person who is or has been that person's lawyer. Note: A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code. (5) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983. 45The respondent submitted that when a determination is made by ASIC under s 49(1), and a decision is made by ASIC under s 49(2) to prosecute a person for an offence against the Corporations Law (including a decision to refer the matter to the CDPP for charges to be prosecuted on indictment) any concern that information about the investigation may be disseminated to others who may be the subject of investigation is necessarily overtaken by that authorised disclosure. (It would appear however that there is no relaxation of the prohibition against publication by third parties who have been given access to the examination transcript under s 25, although nothing turns on that for the purposes of this case.) 46The respondent submitted that it would be a perverse result were officers of ASIC entitled (even obliged) to consider the examination transcript under s 49(1)(b) for the purpose of determining whether criminal proceedings should be initiated, but that, when charges are ultimately preferred and subsequently prosecuted on indictment, for the CDPP to be denied access to the same material for the purposes of a criminal trial or in preparation for it. 47I accept that s 49(1) expressly contemplates that officers within ASIC may utilise an examination transcript for the purpose of making an informed decision under s 49(2) as to whether to charge a person with a criminal offence, including, necessarily, any part of the transcript where a person invokes the privilege against self-incrimination. However, s 49 is silent as to whether the material obtained during the investigation (including an examination transcript) may also be made available to the CDPP. It is pursuant to ss 6(1)(a) and (b) of the Director of Public Prosecutions Act 1983 (Cth) ("CDPP Act") that the CDPP prosecutes an offence against the corporations legislation on indictment. (See also Reg 3(1)(a)(iib) where the CDPP's functions are listed to include "to carry on proceedings instituted by the Australian Securities Commission" and s 69(2A) of the Judiciary Act 1903 (Cth) which allows for the proceedings against a law of the Commonwealth to be brought other than in the name of the Attorney General.) The power under ss 6(1)(a) and (b) of the CDPP Act is also commensurate with the CDPP's other statutory functions under s 6(2)(b), including giving to "an authority of the Commonwealth legal advice on law enforcement or a matter relating to law enforcement whether or not the advice is to the purposes of a particular investigation". It is in this way that the CDPP may be the source of advice to ASIC as to whether or not charges should be laid and whether particular offences should be prosecuted. 48The question remains, however, whether it is implicit in the intended operation of s 49 that the CDPP should also have the examination transcript, such that the dissemination of it by ASIC is authorised and the CDPP's request for access to it is an authorised use under the ASIC Act. 49In that context, both parties also addressed the operation of s 49(5) of the ASIC Act which provides that nothing in the section affects the operations of the Director of Public Prosecutions Act. Both counsel contended that, properly understood, the terms of the subsection supported their argument. 50The applicant submitted that the language and intended operation of s 49(5), addressed in the 1988 Supplementary Explanatory Memorandum to the Australian Securities Commission Bill 1988 (Cth), is to separate and keep separate the differing functions of ASIC and the CDPP, including that those who in ASIC have had direct or derivative access to the examination transcript must be kept separate from those involved in the conduct of a prosecution. Relevant passages of the Explanatory Memorandum are as follows: 10. Clause 49 requires the ASC to have the sole duty to cause a prosecution to be begun and carried on for offences revealed by and investigation or record of examination where the ASC considers that it is necessary to do so. 11. The amendment to CI .49 seek to preserve the statutory functions and powers of the Director of Public Prosecutions and, in particular, the DPP's general functions which are to institute and carry on proceedings for commitment for trial, and to institute and carry on proceedings for summary conviction, in relation to the Commonwealth offences. 12. The amendments will empower the ASC to commence and carry out prosecutions but without prejudice to the DPP's statutory powers and functions. In particular, the DPP's powers to take over, to carry on or to terminate a proceeding for commitment for trial or summary conviction and to give directions or furnish guidelines with respect to the prosecution of offences will not be prejudiced. 13. In accordance with Commonwealth prosecution policy the ASC will have to send the DPP a brief of evidence if as a result of an investigation an offence appears to have been committed. Although the ASC will be able to make an initial decision to prosecute, the DPP has the responsibility to determine whether a prosecution should proceed. 51I do not regard s 49(5) as shedding any light on whether the Parliament should be taken to have intended to modify the usual principle that an accused cannot be required to provide evidence for the Crown, even less that the section should be read as providing for any division of function between ASIC as a prosecutor and the CDPP as a prosecutor. It seems to me that s 49(5) simply confirms that the conferral of some prosecutorial functions on ASIC by s 49(2) is not to be construed as derogating from the CDPP's statutory power and functions to prosecute indictable offences against the corporations legislation in committal proceedings or at trial. 52The applicant also submitted that although s 49(5) makes express reference to the operations of the CDPP Act, given the omission anywhere in s 49 to the CDPP having access to an examination transcript, the canon of construction expressio unius est exclusion alterius allows for the conclusion to be drawn that the Parliament, having made express provision for ASIC to utilise the examination transcript for prescribed purposes, without making provision for the CDPP to have access to it in the conduct of a prosecution on indictment, intended to deal with the two agencies differently. 53There is some force in the respondent's submission that were the applicant's construction of s 49 correct, where a summary offence is prosecuted or where civil penalty proceedings under s 1317J(1) of the Corporations Act 2001 (Cth) are brought, a similar division of function between investigative and prosecuting teams within ASIC might be required, in particular where the privilege in s 68(1) against exposure to penalties applies to such proceedings (see Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129). That does not however, in my view, necessarily involve an acceptance of the proposition that, for all relevant purposes, the Parliament intended that offences against the corporations legislation, prosecuted on indictment, are to be conducted according to a different or altered set of fundamental principles of criminal justice. 54The applicant's counsel was critical of what he described as the respondent's undifferentiated reference to "the CDPP" or the "prosecution team" when addressing the ambit and operation of s 49. He levelled the same criticism at what he described as the uncritical and undifferentiated reference to the CDPP and the prosecution team when counsel was addressing the operation of ss 68(3), 76 and 79 within Division 9 of the ASIC Act. 55Counsel submitted that generic nominations of that kind understate the difficulty the respondent is confronted with in the construction of the Act for which it contends. He submitted that different officers within ASIC and within the CDPP perform different and quite separate statutory prosecutorial functions (as the express power afforded ASIC officers under s 49(2) suggests) and they should not be interpreted as diluting the accused's entitlement to a fair trial, in accordance with the fundamental principle that the Crown prove its case unassisted by the accused. For example, as counsel pointed out, legal officers within the CDPP may, where the circumstances of the case call for it, advise ASIC on whether a particular charge should be laid, and even the terms of the charge, informed by, perhaps even predicated upon, the statements made by the person under examination, without it necessarily following that those responsible within the CDPP for any subsequent prosecution (or the counsel they instruct at trial) should have unqualified access to that material, in particular, those parts over which privilege is claimed. The more so, so it was submitted, where a defence is disclosed or explanations are given by an accused concerning dealings or transactions which may be raised at his trial or which are integral to proof of the Crown case (see Seller at [104]). In counsel's submission, for the respondent to consistently deploy the concept of a homogenised CDPP as being entitled to unqualified access to a s 19 examination transcript, is to elide important distinctions in the different statutory functions exercised by the two agencies, with the perhaps unintended consequence that an accused's fundamental rights at trial are eroded without any express authority or any sufficiently clear implied authority in the ASIC Act which would modify them, or any necessary implication that the legislature intended that they be modified. 56Counsel suggested that where information is gathered or received by ASIC in its investigative capacity concerning a person's knowledge of or involvement in a corporations law breach, including incriminating information provided by that person under compulsion, it is both practical and achievable, consistently with the precepts of the general law, for that information to be quarantined to ensure that there is no risk of unfairness to that person in the conduct of any subsequent curial proceedings, whether those proceedings involve the imposition of civil penalties or criminal sanctions. 57Whilst that is doubtless the case (and senior counsel for the respondent did not suggest otherwise), it does not foreclose on the question whether a temporary stay should be granted in this case. On the respondent's case, it is not whether a prosecution team who have not had access to the applicant's examination transcript might be assigned the task of prosecuting that person at trial, but whether the CDPP is obliged to appoint a new prosecution team in those circumstances. The respondent's counsel submitted that since the ASIC Act impliedly permits the CDPP to have access to the examination transcript under s 49 (any other construction of that section working a perversity) it follows that what the applicant submits may afford the prosecution a forensic advantage at trial is also permitted.

Division 9 of the ASIC Act 58I turn now to consider the operation of ss 76 and 79 within Division 9 of the Act (together with the operation of s 68(3)) which I have earlier described as a mainstay in the construction of the ASIC Act for which the respondent contends on the motion. 59It is the operation of both sections, and the authorities which have considered them which the respondent submits exemplifies that the Parliament intended a statutory modification of the usual position that an accused cannot be required to provide information or assistance to the Crown in an accusatorial justice system. If that submission is accepted, the respondent's related submission that the Parliament must be taken to have intended that the prosecuting authorities be provided with an accused's examination transcript in order to make an informed decision about whether to tender it (or some part of it) in proof of guilt and, if so, to give notice of its intention in compliance with s 79 of the Act, would be persuasive, subject to what the applicant's counsel submitted was the overriding duty of this Court to ensure a fair trial when the prosecution does not intend to tender the examination transcript or any part of it (as is the case at the applicant's trial) but has the ability to make derivative use of it and has made no disclaimer of its right to do so. 60As noted earlier, s 68 provides that it is not a reasonable excuse for an examinee to refuse to give information in a s 19 examination on the basis that it might tend to incriminate the person or render them liable to a penalty. An examinee may, however, under s 68(2) of the ASIC Act, claim privilege over a statement that is made in answer to a question put in an examination on the ground of self-incrimination. If privilege is to be asserted it must be made in respect of the answers to each question asked during the examination - a global claim of privilege cannot be made. 68 Self-incrimination (1) For the purposes of this Part, of Division 3 of Part 10, and of Division 2 of Part 11, it is not a reasonable excuse for a person to refuse or fail: (a) to give information; or (b) to sign a record; or (c) to produce a book; in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty. (2) Subsection (3) applies where: (a) before: (i) making an oral statement giving information; or (ii) signing a record; pursuant to a requirement made under this Part, Division 3 of Part 10 or Division 2 of Part 11, a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and (b) the statement, or signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable. (3) The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in: (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty; other than a proceeding in respect of: (c) in the case of the making of a statement--the falsity of the statement; or (d) in the case of the signing of a record--the falsity of any statement contained in the record. 76 Statements made at an examination: proceedings against examinee (1) A statement that a person makes at an examination of the person is admissible in evidence against the person in a proceeding unless: (a) because of subsection 68(3), the statement is not admissible in evidence against the person in the proceeding; or (b) the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement; or (c) the statement is qualified or explained by some other statement made at the examination, evidence of the other statement is not tendered in the proceeding and the person objects to the admission of evidence of the first-mentioned statement; or (d) the statement discloses matter in respect of which the person could claim legal professional privilege in the proceeding if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement. (2) Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person. (3) Where a written record of an examination of a person is signed by the person under subsection 24(2) or authenticated in any other prescribed manner, the record is, in a proceeding, prima facie evidence of the statements it records, but nothing in this Part limits or affects the admissibility in the proceeding of other evidence of statements made at the examination. 79 Objection to admission of statements made at examination (1) A party (the adducing party ) to a proceeding may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party: (a) will apply to have admitted in evidence in the proceeding specified statements made at an examination; and (b) for that purpose, will apply to have evidence of those statements admitted in the proceeding. (2) A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements. (3) Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice: (a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and (b) specifies, in relation to each of those statements, the grounds of objection. (4) The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned. (5) On receiving a notice given under subsection (3), the adducing party must give to the court or tribunal a copy of: (a) the notice under subsection (1) and any writing that subsection (2) required to accompany that notice; and (b) the notice under subsection (3). (6) Where subsection (5) is complied with, the court or tribunal may either: (a) determine the objections as a preliminary point before the hearing of the proceeding begins; or (b) defer determination of the objections until the hearing. (7) Where a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless: (a) the other party has, in accordance with subsection (3), objected to the statement being so admitted; or (b) the court or tribunal gives the other party leave to object to the statement being so admitted. 61The respondent emphasised that s 76 allows for the non-privileged parts of an examination transcript to be led in evidence in a criminal proceeding (s 5 of the Act defines "a proceeding" to include "a criminal proceeding") subject to the exclusionary grounds specified in ss 76(1)(b) and (c). Section 76(3) provides that a statement at an examination in an authenticated record is prima facie evidence of the statements it records. Again, the respondent seeks to make the point that unless and until the prosecution team is given access to the accused's examination transcript, the prosecutor cannot know what it contains and cannot make a considered decision as to whether the answers an examinee/accused has given under examination, over which no privilege has been claimed, might be relied upon evidentially. 62It was further submitted that in circumstances where an accused may seek to adduce evidence of statements made at their s 19 examination, and notice is given to the CDPP of that intention, the prosecution cannot take an informed position with regards to the tender of that material without accessing the examination transcript. 63Counsel for the applicant dealt with the respondent's submission as to the operation of those provisions in two ways. First, he submitted that the fact that there may, in a given case, be some legitimate evidential use the prosecution may make of non-privileged parts of an accused's examination transcript (or there may be thought to be some use that may be made on instructions from ASIC who have access to the transcript) does not entitle the CDPP (as an homogenised entity) to unrestricted access to the entire examination transcript, including privileged parts, where such access may be used to anticipate the accused's case at trial or to enable the prosecutor to positively mount a case to meet the accused's case. This approach, he submitted, was anathema to the basal principles of accusatorial criminal justice, the abrogation or modification of which the Parliament has not made sufficiently clear to be an intended consequence of allowing for the evidentiary use of the material over which no privilege is asserted. 64The applicant's counsel accepted that where prosecuting counsel (or those within the CDPP that instruct them) are advised by ASIC that the examination transcript may be able to be used for a legitimate evidential purpose as contemplated under s 76(1), or where an accused seeks to tender some part of his or her examination transcript in the defence case, then arrangements can be made for access to that material in a redacted or summary form (consistent with the discharge of the notice obligation of the prosecution or the accused as an adducing party under s 79) whilst maintaining continuing adherence to and respect for the accused's rights to a trial conducted according to accusatorial principles, by withholding access to those parts of the examination transcript over which privilege was claimed. 65What remained in serious contention between the parties was whether the privileged parts of an examination transcript are also available to be tendered by the prosecution in a criminal trial under s 76(1)(a). 66The respondent submitted that when s 76(1)(a) is read with s 68(3) (as it must be) incriminating statements given under compulsion are not automatically inadmissible against an accused at trial. Rather, a statement or statements over which the privilege has been claimed will only be inadmissible when a twofold test is met as follows: (a) the examinee asserted the privilege against self-incrimination at the examination on the basis that it might tend to incriminate (s 68(2)(a)); and (b) the answer might "in fact" tend to incriminate the person (s 68(2)(b)). 67Just as the prosecution team requires access to an examination transcript to determine whether it may make evidential use of answers not subject to the privilege against self-incrimination, the respondent submitted that the prosecution team also requires access to it (inclusive of the privileged material) in order to determine both whether the privilege was invoked by the examinee during examination and to assist the Court to make an informed decision in relation to whether the answer might in fact tend to incriminate, a decision that must be made at trial. 68The respondent relied upon Smith v the Queen as authority for the approach a trial court should take to the tender by the prosecution of statements made in an examination transcript under the operative provisions of Division 9 of the ASIC Act, and the application of those principles in Catena (No 3), as persuasive authority for the construction of the Act for which it contends. 69In Catena (No 3) Corboy J considered that the decision in Smith v The Queen was binding authority for the proposition that statements made by an accused person during an examination under s 19 of the ASIC Act could be provided by ASIC to those responsible for conducting the prosecution of an alleged contravention of s 1043(1)(d) of the Corporations Act without limitation. For that reason, his Honour rejected the accused's contention that the fairness of his trial was prejudiced because the CDPP had been given access to his examination transcript, including answers he had given under the privilege invoked by him under s 68(3) of the Act. 70Corboy J identified what his Honour described as a critical difference between the ASIC Act and the Australian Crime Commission Act (Cth) by reason of the use immunity in s 30(5) of the Australian Crime Commission Act (Cth) being conferred solely by the examinee claiming the privilege against self-incrimination whereas, by contrast, s 68(3) of the ASIC Act confers a use immunity conditional on the examinee claiming the privilege and a finding that the statement, said to be inadmissible in evidence, might in fact tend to incriminate the person, a matter to be determined by the Court when it was required to decide the issue of admissibility. His Honour then turned to the consideration given to the latter question by Buss JA in Smith v The Queen at [71] (with whom Pullin JA agreed at [5]) where Buss JA said: An issue arises as to the date as at which the Court is to determine, for the purposes of par (b) of s 68(2), whether the statement might "in fact" tend to incriminate the person. Is the determination to be made as at the date on which the statement is made, and by reference solely to the facts and circumstances then existing? Alternatively, is the determination to be made as at the date on which the Court determines whether the statement is admissible in evidence against the person, and by reference to the facts and circumstances then existing? The respondent submitted, in effect, that a statement which is, on its face, exculpatory (even if deliberately false) is not a statement which might in fact tend to incriminate and that the determination whether the statement might in fact tend to incriminate the person should be made as at the date on which the statement is made, and by reference solely to the facts and circumstances then existing. In my opinion, the better view is that the determination is to be made as at the date on which the Court determines admissibility, and by reference to the facts and circumstances existing at that time, including, significantly, by reference to the allegations made against the person in the relevant proceeding. It is the better view in that: (a) the "limited use" immunity relates solely to the admissibility of the statement in evidence against the person in a proceeding of the kind described in s 68(3); and (b) the Court in which that proceeding is pending determines whether the statement is admissible, and, in those circumstances, it is more likely the Parliament intended that any propensity, in fact, of the statement to incriminate the person, in the context of the pending proceeding, should be determined by reference to the facts and circumstances existing at that time. 71Corboy J then set out ss 76 and 79 of the ASIC Act which he described as "concerning an objection to admission of statements made in an examination conducted under the ASIC Act", after which he said: [22] Two points should be emphasised regarding the statutory regime created by s 68, s 76 and s 79 of the ASIC Act. First, as the passage from the judgment of Buss JA in Smith v The Queen cited above indicates, s 68(3) is concerned with the admissibility of evidence. Second, the conclusion that the time at which the admissibility of a statement made compulsorily under a claim of privilege was to be determined was when it was sought to tender the statement as evidence reflected the meaning and effect of s 68 of the ASIC Act properly construed. The conclusion did not reflect the application of a rule of evidence or the exercise of a discretion. It was the result of a process of statutory construction. [23] In my view, the effect of s 68 of the ASIC Act, as interpreted by the Court of Appeal in Smith v The Queen, is that, by necessary implication, the section contemplates that the statements made by an accused person during a s 19 examination could be provided by ASIC to a person responsible for conducting the prosecution of an alleged contravention of the Corporations Act against that person. The prosecutor could be provided with a transcript of the examination for the purpose of determining whether statements made by the accused, as an examinee, were admissible in the trial having regard to the offence alleged and all other relevant circumstances prevailing at the time of the trial, including circumstances that might arise from the manner in which the trial was conducted. Accordingly, the mere provision of the transcript to the prosecutor could not, in itself, be regarded as likely to prejudice the fair trial of an accused who had been previously compelled to answer questions and who had claimed privilege over the answers given during an examination conducted under s 19 of the ASIC Act having regard to the provisions of s 68. [24] I accept the submission made by senior counsel for the CDPP that this conclusion is consistent with the statutory scheme created by the ASIC Act. In particular, s 49 of the Act provides that ASIC may cause the prosecution of a person for an offence to be begun and carried on where it appears to the Commission as a result of an investigation or from a record of an examination that a person may have committed an offence against the corporations legislation and that person ought to be prosecuted for the offence. That is, ASIC is expressly required to consider the record of an examination in determining whether to institute and carry on a prosecution. [25] Considerations concerning the ability of a person suspected of having committed an offence against the Corporations Act to obtain a fair trial must condition the decision to prosecute and the conduct of the prosecution. However, s 49 clearly indicates that the legislature considered that the record of an examination conducted by ASIC under s 19 was an elemental source of information for the purpose of determining whether a prosecution should be initiated and for the conduct of a prosecution once commenced. Further, s 76 and s 79 of the ASIC Act support the conclusion that it was contemplated that a prosecutor could be provided with a transcript of a s 19 examination under the scheme for investigating and prosecuting alleged contraventions of corporations legislation created by the ASIC Act. 72His Honour went on to find, referable to the evidence in the proceedings before him, that discretionary consideration favoured the accused's trial proceeding. He said: [26] I have read the transcript of the s 19 examination of Mr Catena. Questions put to Mr Catena during the examination are of a kind that would be expected to be posed, having regard to the subject matter of the examination. The transcript contains the type of information that, in my view, Parliament contemplated ASIC might possess for the purpose of commencing and carrying on prosecutions under s 49. I infer from Mr Rasool's affidavit that the transcript was first provided to the CDPP for the purpose of taking advice on whether a prosecution should be commenced. The disclosure of the transcript for that purpose was consistent with s 49 of the ASIC Act. [27] The transcript also contains the type of information that a prosecuting authority, such as the CDPP, might possess for the purpose of making decisions about the admissibility of evidence when preparing for and conducting the prosecution of an offence against the Corporations Act. Accordingly, the provision of the transcript for Mr Catena's examination by ASIC to the CDPP was, in my view, authorised by the ASIC Act. [28] It follows that I consider that there is a significant difference between the use of immunity provisions of the ASIC Act and the ACC Act and that there is no reasonably arguable basis for granting a temporary stay of the prosecution against Mr Catena on the grounds identified by E M Heenan J in Bartlett v The Queen; that is, that a temporary stay should be granted pending the determination by the New South Wales Court of Appeal of the appeal in R v Seller; R v McCarthy. 73The respondent submitted that despite the fact that the matters to which his Honour referred in [26]-[27] were supported by evidence led in the proceedings, his analysis of the ASIC Act was correct and, subject only to me being satisfied to the contrary, I would adopt his Honour's reasoning and refuse the temporary stay of the applicant's trial. 74The applicant did not take issue with the statement of principle in Smith v The Queen as to when the question of the proper invocation of privilege is to be decided but with the application of that principle by Corboy J in the context of a criminal trial which did not involve a charge which has falsity as a constituent element. 75In Smith v The Queen the issue for the determination by the Court arose on an application by the accused for severance of an indictment charging both a criminal breach of director's duties under the corporations legislation and breaches of ss 64(1) and (2) of the ASIC Act (it being alleged that false evidence had been given by the accused under examination) and where the prosecution had given notice under s 79(1) of its intention to adduce evidence of statements made by the accused during their examination to establish that case. Notices of objection by each of the accused under s 79(3) were served. In Catena, the accused was not charged with an offence involving any element of falsity. 76Counsel for the applicant submitted, correctly in my view, that on proper reading of Smith v The Queen (in the judgments of Buss JA with whom Pullin JA agreed and, on this issue, in the judgment of Miller JA), the construction of ss 68(2) and (3) of the ASIC Act, and the detailed consideration given to the relationship between those subsections and s 76, is expressly confined to proceedings in respect of the falsity of a statement made under a s 19 examination. Counsel for the applicant submitted that [72]-[74] and [86]-[88] in the judgment of Pullin JA in Smith v The Queen (Buss JA agreeing) make that clear, and [86] emphatically so. Pullin JA said: [72] My examination of s 68(3) of the ASIC Act will focus on the provisions relating to the circumstances in which a statement made by a person under examination is admissible or not admissible in evidence against the person in a criminal proceeding. [73] As I have mentioned, s 76(1) provides that a statement that a person makes at an examination of the person is admissible in evidence against him or her in a proceeding unless, relevantly, because of s 68(3), the statement is not admissible in evidence against the person in the proceeding. [74] If pars (a) and (b) of s 68(2) are satisfied, then, by s 68(3), the statement is not admissible in evidence against the person in a criminal proceeding. That general prohibition in s 68(3) is, however, subject to an exception, which provides, in effect, that the statement is admissible in evidence against the person in a proceeding in respect of the falsity of the statement. ... [86] In my opinion, the general prohibition in s 68(3) precludes the statement being received in evidence against the person for any purpose in a criminal proceeding, where the falsity of the statement is not an element of any offences being tried. [87] In particular: (a) a written record of the statement may not be tendered; (b) oral evidence of the making of the statement may not be given; and (c) if the person gives evidence in his own defence, the statement may not be put to him in cross-examination for the purpose of securing an admission that he made the statement. [88] Further, the general prohibition precludes the statement being received in evidence in a criminal proceeding, where the falsity of the statement is not an element of any offences being tried, for the purpose of establishing that the statement was a lie which the person told out of a consciousness of guilt in relation to the offences being tried, or for the purpose of proving that the statement was a lie and thereby attacking the person's credit. [Emphasis added.] 77Although Miller JA expressed different views on some matters in issue on the appeal (of no relevance to the question with which I am concerned), his Honour approached the question of the admissibility of the evidence given under examination in s 76 by applying a rule of construction of s 68(3) which was productive of the same result as the majority. At [190] his Honour said: I accept the contention that "a criminal proceeding" within the meaning of s 68(3) means a criminal proceeding in respect of the alleged falsity of a statement and solely a criminal proceeding for that purpose. This view accords with Smart J's observation in R v Hood (1997) 91 A Crim R 526 at 536 that: "Where a statute abrogates the privilege against self-incrimination and confers compensatory protection, the court must construe the ambit of that statutory protection. A technical or narrow approach should not be adopted having regard to the importance of that privilege ..."

Consideration 78Contrary to the respondent's submission, Catena is not authority for the proposition advanced as the mainstay of its opposition to the temporary stay or that the CDPP or the prosecution team is entitled to access the examination transcript to determine whether an examinee invoked the privilege against self-incrimination, since it is only in a trial where falsity is an element of the offence to be tried that s 76(1)(a) is available to be invoked. That being so, I do not regard Division 9 of the ASIC Act, either alone or in the context of the Act when construed generally, as operating to modify the usual position that an accused cannot be required to provide information or assistance to the Crown in the way contended for by the respondent. 79To the extent that Corboy J considered that his views as to the intended operation of s 76 were consistent with the statutory scheme is the ASIC Act (in particular s 49), I respectfully disagree. The intended operation of s 49 is clear enough. However, in the absence of a sufficiently clear and unambiguous implication in s 49 that Parliament intended that the CDPP have unrestricted access to the entirety of a s 19 examination transcript (or that the construction of the Act generally leads irresistibly to that conclusion), I am not satisfied that s 49 operates to modify the fundamental principles of an accusatorial system of criminal justice in the unqualified way contended for by the respondent. Neither am I satisfied that on their proper construction ss 76 or 79 have that effect in the context of criminal proceedings prosecuted on indictment for contraventions of the corporations legislation. Self-evidently, were the accused to rely upon statements in his or her examination transcript, at his or her election, there would be no abrogation of the principle that the Crown prove its case unassisted by the accused and an application for access to the transcript in either an abridged or unabridged form might be made to the trial judge. 80It does not follow that the temporary stay of the applicant's trial will be relief open to every accused who has been compulsorily examined under s 19. I am satisfied, however, that the principles in Lee v The Queen (2014) are engaged in this case where the respondent has not sought to explain the circumstances in which the CDPP was provided with the examination transcript or the reason it was provided; where no case is advanced that the CDPP intends to make any evidential use of the non-privileged parts of the examination and where it would not be permitted at the applicant's trial to make any evidentiary use of the statements over which privilege was claimed. 81In those circumstances, I am satisfied that unless the prosecution team is replaced, there is a risk that there would be an inappropriate displacement of the necessary balance in a criminal trial between the accuser and the accused with the risk that an unfair trial would result.

Orders 82The indictment presented by the Crown on 7 February 2014 be temporarily stayed, pending: (c)Removal from the prosecution team (including but not limited to employees, officers or members of the Australian Securities and Investments Commission, the Commonwealth Director of Public Prosecutions, and counsel briefed on behalf of the Crown) of any person who has had direct or derivative access to the transcript of the examination of Oliver Peter Curtis, conducted by the Australian Securities and Investment Commission, under s 19 of the Australian Securities and Investment Commission Act 2001 (Cth) ("examination transcript"); and (d)Persons not privy, directly or derivatively, to that examination transcript being engaged.

Amendments 04 July 2018 - Publication restriction removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2018

Australian Securities and Investment Commission Act 2001(Cth)

Trade Practices Act 1974(Cth)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (12)

Cited By (2)