EDELMAN J.
Introduction
Suppose that, before charging a person, the police or prosecutors seek to resile, without cause, from a written indemnity from prosecution given to the person. Or suppose that a suspect is charged after "the deliberate invasion by the police of a suspect's right to legal professional privilege". Or suppose that a person is unlawfully removed from one country to another to face a fair trial for an offence in the other country. Although an "infinite variety of cases could arise", and although every case must be assessed on its own facts, these appeals, like the examples above, raise the basic question of the nature of a court's power to grant a permanent stay of criminal proceedings despite the possibility of the person receiving a fair trial.
In circumstances based upon each of the first, second, and third examples above, courts have recognised the possibility that the power to stay proceedings as an abuse of process might be exercised. In some instances, the power was exercised. In each case the possibility of exercising the power existed "although the fairness of the trial itself was not in question".
A permanent stay of proceedings for an abuse of process is a measure of last resort. It will be ordered where there is no other way to prevent an unfair trial. It will also be ordered where there is no other way to protect the integrity of the system of justice administered by the court. The latter category, which can be conveniently described as protecting the "integrity of the court", is the concern of these appeals.
"Abuse of process" may not be the best language to describe the category where the focus is upon the integrity of the court generally rather than its particular processes. The rationale for this category has been described in various ways. The rationale has been described as being "a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law". It has been described as avoiding "an erosion of public confidence". It has also been described as arising where a trial would bring the administration of justice into disrepute. Each of these verbal formulations attempts to capture a concern for the systemic protection of the integrity of the court within an integrated system of justice. The possibility of an unfair trial, or a degree of unfairness in a trial, may be a factor contributing to that concern. But an unfair trial is not a prerequisite for a permanent stay in this category.
The issue on these appeals is whether a permanent stay of proceedings is necessary to protect the integrity of the court and thus to prevent an "abuse of process". The issue arises due to the stultification of basic safeguards contained in a Commonwealth statute that permitted, in certain circumstances, compulsory examination of a person even where his or her answers might be self-incriminating. The statutory regime contained various protections for the examinee, including: (i) the existence of a special Australian Crime Commission ("ACC") operation or investigation; (ii) the examinee's right to be told of the presence of any person at the examination other than an ACC staff member; and (iii) a usual direction to be given that evidence must not be published, other than in accordance with exceptions specified by the examiner. The Australian Federal Police ("AFP") examinations guide also recorded that the ACC practice was not to examine a witness directly about the witness' own criminal offending.
In the circumstances of these appeals, the safeguards were ignored. After the appellants had refused to answer questions from the AFP, the AFP unlawfully used the ACC, without any special operation or investigation being undertaken or conducted by the ACC, as a "hearing room for hire" to compel the appellants to answer questions. Many of the police investigators secretly watched from a nearby room as the appellants were compelled to incriminate themselves. The transcripts of the interviews were widely disseminated to the AFP and prosecution teams.
The conduct of the unlawful examinations involved the AFP dictating who would be examined, whether and when the examinations would be held, and generally the questions that would be asked at the examinations. The AFP had two purposes, supported by the conduct of the ACC examiner, whose improper purpose was to assist the police generally. The AFP's purposes were (i) to lock each of the appellants into a version of events on oath in an attempt to prevent them from providing an alternative version at any trial, and (ii) to obtain assistance in knowing what to look for in assembling any briefs for the prosecution from tens of millions of documents. Both of those purposes were achieved. The appellants gave their versions of the events on oath. And briefs were compiled using the material obtained following a refined search, which material was described by the lead investigator as "the most significant influence on the charging decision and the focus of the investigation".
The appeals to this Court were much assisted by the comprehensive reasons of the primary judge and the Court of Appeal of the Supreme Court of Victoria, both of which clearly expose and analyse the issue. The primary judge held that a permanent stay of proceedings should be ordered due to the forensic disadvantage caused to the appellants and also to protect confidence in the administration of justice. However, an appeal by the Commonwealth Director of Public Prosecutions ("CDPP") was allowed by the Court of Appeal.
For the reasons below, the primary judge was correct to order that the proceedings be permanently stayed. The serious nature of the charges is subordinated to the potential damage to the integrity of the court if a trial were to proceed. A permanent stay of proceedings is necessary as it is the only response that can adequately protect the integrity of the court. The appeals to this Court should be allowed, and orders made as proposed in the joint judgment of Kiefel CJ, Bell and Nettle JJ.
During the course of preparing and writing these reasons, I have had the benefit of reading the joint judgment and the reasons of Keane J. In these reasons I agree with, and gratefully adopt, various sections of the joint judgment. I also agree with the reasons of Keane J. However, in light of (i) the importance of the power to stay proceedings as an abuse of process, and (ii) the divergence of views about its scope and application, this is an instance where the expression of separate reasons may help the common law to "work itself pure".
The rationale for the power to stay proceedings as an abuse of process
The power to prevent an abuse of process is an inherent common law power of a superior court of law; it is a power that does not derive from statute but is intrinsic to the nature and structure of the court itself. The power to stay proceedings to prevent an abuse of process has been conveniently divided into three main categories. In a passage quoted with approval on a number of occasions, McHugh J said that the three categories are: (i) the court's procedures are invoked for an illegitimate purpose; (ii) the use of the court's procedures is unjustifiably oppressive to one of the parties; and (iii) the use of the court's procedures would bring the administration of justice into disrepute.
These categories are not exhaustive, although each captures a wide range of different circumstances. The reference to "repute" in the final category, which echoes the language of "public confidence", is not concerned with the actual reputation of the court among members of the public, or with their actual perception of the court. The notion of repute, or public confidence, is a construct that is concerned with the systemic protection of the integrity of the court within an integrated system of justice. It represents "the trust reposed constitutionally in the courts". The close association of that construct with matters at the core of judicial power may be the reason why it has been suggested that the inherent power to prevent an abuse of process may be an attribute of the judicial power provided for in Ch III of the Constitution.
The three categories described by McHugh J are not independent. If the use of the court's procedures is unjustifiably oppressive to one of the parties (category (ii)), imperilling the fairness of a trial, this can contribute to the conclusion that the administration of justice would be brought into disrepute. There may even be circumstances where oppression of one of the parties is sufficient to bring the administration of justice into disrepute, even if the trial would be fair. Further, the underlying rationale of category (iii), namely, protection of the integrity of the court and its processes, might also encompass category (i) where a trial is instituted or maintained with an immediate, predominant purpose that is improper. Therefore, at a higher level of generality, it may be that the three categories are really only two, which overlap: (i) cases where a defendant cannot receive a fair trial; and (ii) cases where a trial would bring the administration of justice into disrepute.
Although there was considerable argument on these appeals about the potential fairness of a trial of the appellants, unfairness to the appellants is a relevant, but not necessary, factor for a conclusion on the central issue in this case: whether the use of the court's procedures would bring the administration of justice into disrepute. Since the rationale for a stay in cases in this category is the protection of the integrity of the court rather than the fairness of the court's processes, the label "abuse of process" may not be entirely apt. But the use of that label is well-established and will be used here for convenience.
The integrity of the court
It is well-established that the function of deciding whether to initiate and maintain a criminal proceeding is vested in the executive, whilst the function of hearing and determining a criminal proceeding is vested in the courts. Nonetheless, it is equally well-established that, in an integrated justice system, these two functions are not hermetically sealed from each other. As Richardson J said in Moevao v Department of Labour, in a passage cited with approval in this Court, "the due administration of justice is a continuous process ... [T]he Court is protecting its ability to function as a Court of law in the future as in the case before it." In protecting its ability to function as a court of law in the future, the court can make orders that cut across the executive function of initiating and maintaining a criminal proceeding. Hence, during a hearing, evidence that might have been the basis for the initiation of the proceeding might be excluded. Or the maintenance of the criminal proceeding might be precluded by the order of a permanent stay. "[I]t has long been established that, once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances, reject relevant and otherwise admissible evidence on discretionary grounds or temporarily or permanently stay the overall proceedings to prevent abuse of its process."
The notion of the integrity of the court is a loose principle which is not easily applied to a particular case. This is one reason why it has been said in this area of law that forms of expression should be "understood in the context of the particular facts of each case" and should not "be read as attempting to chart the boundaries of abuse of process". In a case of the nature of these appeals, the question to be asked is whether, despite the substantial public interest in pursuing a trial of the accused, the trial must be stayed due to the threat to the integrity of the court arising from the systemic incoherence that would result if the trial were allowed to proceed. That incoherence arises where the manner in which the case against the accused was developed and brought was contrary to basic tenets of the Australian criminal justice system, as embodied in a statute.
There is a substantial public interest in prosecuting persons reasonably suspected of having committed a crime, and against whom there is a prima facie case with reasonable prospects of conviction. The more serious the offence, the stronger will be the public interest and therefore the more fundamental, and irreparable, the systemic incoherence must be in order to justify a permanent stay of proceedings. But the public interest in prosecuting persons reasonably suspected of crimes is not absolute. The most obvious instance of this is the discretion vested in the CDPP, and every Director of Public Prosecutions of the States and Territories, to decline, in the public interest, to prosecute a person reasonably suspected of an offence and against whom there is a prima facie case. The expressed factors that can be considered in the exercise of that discretion include "whether or not the prosecution would be perceived as counter-productive to the interests of justice" and the necessity to maintain public confidence in the courts.
The same factors are also reflected in the common law's approach to an "abuse of process" where the proceeding would bring the administration of justice into disrepute. The administration of justice, used in this sense, includes all of the means by which the trial is prepared and brought. Just as the end of criminal prosecution does not justify the adoption of any and every means for securing the presence of an accused person before the court, so too that end does not justify any and every means in the preparation of the case to be presented to the court. In each case, as Lord Steyn said in R v Latif:
"the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."
Less extreme measures to protect the integrity of the court
Before a permanent stay can be ordered, it is necessary to consider whether there are any other curial measures that could be taken to address any systemic incoherence that would be caused by a trial of the accused. This must be considered because the court's ability to protect its integrity is not confined to orders that grant a permanent stay of proceedings.
There is a range of measures less drastic than a permanent stay of proceedings that can protect the integrity of the court. It should be an extremely rare case in which orders could not be made, or sufficient undertakings given by a conscientious prosecution team and accepted by the court, to address concerns that a trial will be unfair or that the trial will bring the administration of justice into disrepute. For instance, pre-trial publicity that could threaten a fair trial can be remediated by directions or orders for trial before a judge without a jury. Prosecution teams tainted with knowledge of information that should not be known can be replaced after giving undertakings to the court about any dissemination of that information. Undertakings can be given to destroy transcripts, recordings, or documents that have been unlawfully or improperly obtained.
Although many other examples can be given of measures to reduce any unfairness of a trial or to minimise the prospect that a trial will bring the administration of justice into disrepute, it is necessary to say a little more about two curial measures that are less extreme than a permanent stay of proceedings, but that respond to the same concern about the integrity of the court. The first, commonly used in civil proceedings, is allowing the proceeding to continue but refusing to enforce a plaintiff's right. The second is the exclusion of evidence on the ground of public policy.
As to the refusal to enforce a right, in Holman v Johnson Lord Mansfield said that "[n]o Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act". Underlying the breadth of this statement is the notion that, if the purpose of legislation that makes conduct unlawful would be stultified by the enforcement of common law rights, then those rights generally should not be enforced. To do so could imperil the integrity of a court, if and when it enforces the same legislation in other cases. An example is the decision of this Court in Equuscorp Pty Ltd v Haxton. In that case, a lender was deprived of the right to enforce a claim for restitution of unjust enrichment, which claim was assumed to exist. Although the Companies (New South Wales) Code and Companies (Victoria) Code did not bar any action for unjust enrichment, either expressly or impliedly, the majority deprived the lender of the ability to enforce the right because to have allowed it would be contrary to the "policy" of the statute and would stultify its purpose. This response was less extreme than a permanent stay of proceedings, although it had the same effect and arose from the same rationale. In both instances, the integrity of the court would be compromised if a court enforced rights in a manner that stultified the purpose of legislation.
The exclusion of evidence on the ground of "public policy" is another instance of a less extreme response than a permanent stay of proceedings to the same systemic concern. In Jago v District Court (NSW), Mason CJ and Gaudron J treated the exclusion of evidence and the stay of proceedings, in cases of unfairness, as co-existing in the same armoury of remedies. That armoury responds to the concern to protect the integrity of the court generally. The exclusion of evidence based upon "public policy", sometimes called the Bunning v Cross "discretion", has been described as the "principle of judicial integrity". The exclusion occurs to avoid "the loss of respect that would befall the courts should they turn a blind eye to the abuse by those responsible for the investigation and prosecution of offences" or should they give "the appearance of curial approval to wrongdoing on the part of those whose duty is to enforce the law".
Just as a permanent stay of proceedings can be ordered on the ground of ensuring that the administration of justice is not brought into disrepute, so too the exclusion of evidence on this public policy ground is "to ensure that the conviction of the alleged offender is not bought at too high a price by reason of curial approval of - if not reward for - illegal conduct on the part of the law enforcement agency". As Professor (now Justice) Paciocco observed, in such a case a stay of proceedings and the exclusion of "technically admissible evidence" are both responses to protect public confidence in "the administration of justice". Each remedy aims to protect the integrity of the court. And just as exclusion of evidence or other curial measures should be considered before the extreme remedy of a permanent stay on the ground of unfairness, so too should exclusion of evidence and other measures be first considered before a permanent stay of proceedings is ordered on the ground of protection of public confidence in the administration of justice.
An example is the decision of this Court in Ridgeway v The Queen. In that case, a majority of this Court ordered a permanent stay of proceedings on the basis that the drugs of which the appellant had been charged with possession had been imported as part of an undercover operation organised between the AFP and the Royal Malaysian Police Force. In a joint judgment, Mason CJ, Deane and Dawson JJ held that the appropriate response was to exclude all evidence of the offence; the permanent stay was granted because the proceeding was bound to fail. Their Honours took a narrow view of abuse of process. They held that an abuse of process could not encompass "the improper invocation by the State of the judicial process and its powers", even in a circumstance where the police conduct creates the charged offence, such as by stealing and then supplying stolen property in order to obtain a conviction of the person to whom it is supplied. In contrast, Gaudron and McHugh JJ, each writing separately, took a wider view of abuse of process that included considerations, beyond the immediate trial, that bear on public confidence in the administration of justice. But they differed in the outcome. Gaudron J, in the majority, concluded that the proceedings in question were an abuse of process. McHugh J, in the minority, concluded that they were not, principally because the police officers acted in the belief that their conduct was lawful and "with the best of motives" in relation to a plan of which the appellant was the architect.
Four members of this Court subsequently quoted with approval the broader approach taken by Gaudron J. The broader approach was also applied in Moti v The Queen, where Australian officials facilitated the unlawful deportation of the appellant to face trial in Australia, despite being told that the deportation was not believed to be lawful. However, neither of those decisions cast doubt upon the decision of Mason CJ, Deane and Dawson JJ in Ridgeway to grant the permanent stay on the sole basis that the proceedings would inevitably fail due to the exclusion of essential evidence. Since the exclusion of evidence for reasons of "public policy" is a less drastic remedy than the grant of a permanent stay, that should be the first remedy considered. As Toohey J said in Ridgeway, a matter of "great importance" in considering whether a permanent stay should be granted was the court's ability to exclude the evidence obtained by unlawful means.
The facts of Moti also illustrate the way that the broad approach to abuse of process can interact with the exclusion of evidence. In that case, one ground upon which the permanent stay was sought was that payments to witnesses had been made by the AFP before and after the appellant was charged. This Court unanimously refused to order a stay of proceedings on that basis. But the Court did not dismiss the ground on the basis that a pre-trial payment to a witness could never be capable of being an abuse of process. Instead, a joint judgment of six members of the Court held that a stay of the proceedings for abuse of process should be denied because the payments were lawful, and they were not designed to, and did not, procure evidence from the witnesses. If the payments had been unlawful, and if they had been designed to procure evidence, then it would have been necessary to ask whether a permanent stay of proceedings was the only possible response to ameliorate the threat to the integrity of the court in allowing the proceedings to continue. It may be that, in those circumstances, the systemic concern could have been addressed by excluding the evidence of the witnesses who were paid.
The conduct to which the appellants were subjected
The Australian Crime Commission Act 2002 (Cth) ("the ACC Act") involves a statutory compromise between the interests of the individual and public interest considerations including the conviction of offenders. The relevant interests of the individual are sometimes described as a so-called "right" to silence at common law. More accurately, this is a liberty to "maintain silence when questioned by persons in authority about the occurrence or authorship of an offence" and, building upon that liberty, the "deeply ingrained" privilege against self-incrimination that "a person cannot be compelled 'to answer any question ... if to do so "may tend to bring him into the peril and possibility of being convicted as a criminal"'". As French CJ and Crennan J said in X7 v Australian Crime Commission, in balancing public interest considerations and these interests of the individual the ACC Act provides "compensatory protection to the witness" compelled to answer questions at an examination. Two essential components of that protection are relevant. First, an examination can only be conducted under s 24A "for the purposes of a special ACC operation/investigation". The existence of a special ACC operation/investigation is central to the conduct of examinations in Pt II, Div 2. For instance, examination and cross-examination is confined by s 25A(6) to "any matter that the examiner considers relevant to the ACC operation/investigation". Secondly, in the conduct of an examination, compensatory protection is contained in the provisions of ss 25A(3), 25A(7) and 25A(9).
A full recitation of the facts, the decisions below, and the legislative provisions is contained in the joint judgment. For the reasons given in the joint judgment, in the section entitled "Absence of special ACC investigation", the Court of Appeal was correct to conclude that there was no special ACC investigation relevant to the examination of the appellants. The entirety of the examinations was unlawful. Indeed, this conclusion was not challenged by the CDPP and, for the reasons given in the joint judgment under the heading "The ACC's standing in these appeals", the ACC had no independent standing to raise this issue. The ACC had, and has, no interest in the trial of the appellants. The persons with that interest are the Crown and the appellants; in this sense, the ACC is a third party. It is contrary to basic tenets of fairness in our criminal justice system for a third party to intervene in a criminal dispute to create new issues for a person to answer on the question of whether the person should stand trial.
The examinations were not merely unlawful as a consequence of the lack of a special ACC investigation. They were also improperly conducted without regard to the AFP's own guidelines or the ACC Act. As to the former, the approach of the AFP was contrary to its own guidelines, which provided that in circumstances including those faced by the appellants "the ACC will not examine a witness directly about their own criminal offending". As to the latter, the ACC examiner engaged in compulsory questioning of the appellants without any consideration of his statutory duties under ss 25A(3), 25A(7) and 25A(9) of the ACC Act. He did so even though he was aware of s 25A and had previously considered and made orders under it.
Section 25A(3) required the ACC examiner to determine who could be present (which includes watching simultaneously from another room) at the examinations. Section 25A(7) required the ACC examiner to inform the witness if a person, other than a member of ACC staff, is present. Section 25A(9) required the ACC examiner to make a non-publication direction if not to do so might prejudice the fair trial of the appellants as persons who may be charged with an offence. As explained below, the ACC examiner knew that the appellants had refused to participate in a record of interview but he agreed, without any real consideration, to the AFP request for summonses and compulsory examinations. He knew that officers of the AFP were secretly watching the examinations from another room but agreed to the AFP's requests for their attendance without any real consideration. And he made non-publication directions that permitted "wholesale dissemination" of the transcript to all AFP investigators and the CDPP without any consideration of its effect on the fairness of any trial of the appellants.
The circumstances in which this conduct occurred emphasise the considerable extent to which the AFP and the ACC examiner departed from the statutory scheme. These circumstances can be summarised by considering the period before, during, and after the examinations. The pseudonyms used to describe the persons in the discussion below are the same as those used in the joint judgment.
The period prior to the examinations
Prior to the examinations, the AFP was in the following position. Any prosecution case would be largely circumstantial, based upon interpretation of documents. The AFP had obtained tens of millions of documents from witnesses and search warrants, with the total number potentially being more than 80 million documents. Initially, these documents were not even capable of being electronically searched. Very little, if any, analysis of the documents had been completed. None of the appellants had been charged with any offence. However, each was a suspect. Each had been offered a record of interview, under caution. Each had declined. Some had been offered a statutory sentencing discount for a plea of guilty. Each had declined.
The examinations
The unlawful examinations of the appellants took place between April and November 2010.
The senior investigating police officer, Schwartz, described the ACC as having been "engaged" by the AFP "in order to extract information and evidence from witnesses". That was a polite euphemism for what the primary judge accurately characterised as the ACC being a "hearing room for hire". As the primary judge found, the ACC examiner followed the directions of the AFP, and exercised no independent judgment in relation to any of the following: (i) who would be examined; (ii) why summonses should be issued for them to be examined; (iii) when, within a window of time, the examinations would take place; (iv) who, of the 19 or 20 police officers authorised by the ACC examiner to attend, would be present to observe the examinations; (v) what role those present had, or would have, in the investigation; (vi) generally, the questions asked at the examinations, which were prepared by the police; and (vii) to whom the examination material would be disseminated. AFP officers also participated in tactical adjournments of the examinations and discussions with examinees during the breaks.
The ACC examiner knew that each appellant was a suspect and that each appellant had declined to participate in a record of interview. The ACC examiner also knew that, at the time of the examinations, the tens of millions of documents obtained by the AFP had not been electronically searched or analysed. The purposes of the AFP, supported by the conduct of the ACC examiner, whose purpose was to assist the AFP, were to (i) lock each of the appellants into a version of events on oath in an attempt to prevent them from providing an alternative version at any trial, and (ii) ascertain what to look for in assembling any briefs for the prosecution from tens of millions of documents.
The period after the examinations
The AFP achieved its purposes by the unlawful examinations. The appellants gave compelled evidence under oath, answering the questions that the AFP wanted answered. The AFP also used the examinations to guide its selection of the documents to include in prosecution briefs and to refine and define its searches. The material obtained as a result of the searches was described by Schwartz as "the most significant influence on the charging decision and the focus of the investigation".
Each appellant was first charged with offences under ss 11.5(1) and 70.2(1) of the Criminal Code (Cth) in July 2011 or, in the case of Mr Tucker, March 2013. Each of the appellants except Mr Tucker was also charged with false accounting, under s 83(1)(a) of the Crimes Act 1958 (Vic).
Allowing the trial to proceed would compromise the integrity of the court
There are powerful reasons that favour the refusal of a stay in this case. First, charges under ss 11.5(1) and 70.2(1) of the Criminal Code concern serious offences. As counsel for Mr Strickland frankly submitted in reply, the appellants were seen as "sharks", not "minnows". Secondly, curial orders could be made, and undertakings could be given, to reduce substantially the forensic disadvantage to the appellants that arises from the unlawful examinations. All of the examination material could be excluded from the trial. A new prosecution team, quarantined from any of the examination material, could conduct the prosecution. Any further forensic disadvantage that might arise at trial, such as during cross-examination, might be ameliorated in part by curial orders. If that unfairness were not able to be sufficiently ameliorated, then another stay application could be brought.
On the other hand, to allow the trial to proceed, however fairly it may be conducted, would effectively stultify the operation of essential provisions of the ACC Act. The examinations were instigated unlawfully. They were conducted with unlawful purposes and without regard to the ACC Act. The two purposes of the AFP, and the purpose of the ACC examiner (to assist the police), were achieved contrary to the basic safeguards in the ACC Act. And the achievement of these purposes was a contributing factor in bringing the case against the appellants to trial.
If the unlawful conduct of the AFP and the ACC examiner were the cause of, rather than merely a factor contributing to, the appellants being charged, it would not be difficult to see that the remedy of a permanent stay of proceedings to protect the integrity of the court was enlivened. The court proceedings would be caused by the stultification of key provisions of the ACC Act for unlawful purposes that had been achieved.
These appeals fall short of a "but for" causal case where the prosecution could not have occurred but for the unlawful conduct. It is possible that the AFP, even without the examinations, would have been able to compile prosecution briefs by eventually making electronic searches of the tens of millions of documents without the appellants' compelled assistance. It may also be that voluntary disclosures made by some of the appellants might still have been made in the absence of any unlawful examination. It may also be that a properly instituted and properly conducted examination could have caused the appellants to be locked into a case at trial.
Before the Court of Appeal and before this Court, the CDPP went further. It submitted that the appellants had not merely failed to prove causation but also had not proved the precise contribution to the prosecution of the benefit that the AFP obtained from the examinations when preparing the prosecution briefs.
There are two reasons why the failure of the appellants to prove strict causation or the precise contribution made by the unlawful conduct should not prevent the conclusion that a permanent stay is necessary to protect the integrity of the court.
First, as to the extent of the contribution, that information was peculiarly within the knowledge of the AFP and the prosecution, "which has the responsibility of ensuring its case is presented properly and with fairness to the accused". Evidence is "weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted". There is a ring of absurdity to the submission that the appellants had made a forensic choice not to attempt to cross-examine members of the AFP in circumstances where (i) the AFP kept no record about which searches were conducted as a result of information provided by each appellant, and (ii) it would have been extremely difficult to trace the precise mental process followed by individual police officers in using particular information from the examinations, by itself or in combination with other information, to identify particular key documents. Indeed, with a large team of police officers, tens of millions of available documents, many hours of examinations, and the fact that examination answers could not be related to documents in a binary equation of "contribution" or "no contribution", the suggested exercise of cross-examination was described by the primary judge as "extremely difficult". Indeed, as she acknowledged, this description was an understatement. It is doubtful that the conclusion could ever have been put any more precisely, or that the appellants could have proved anything more than the primary judge's natural inference that the police obtained "a substantial investigative advantage".
Secondly, proof of a strict causal connection should not always be required. In relation to exclusion of evidence on the "public policy" ground of protecting the integrity of the court, although the improper or unlawful conduct must be a contributing factor to the obtaining of the evidence to be excluded, there is no requirement for proof of a strict causal connection between the conduct and the obtaining of the unlawful evidence. The same should apply to conduct upon which a stay of proceedings is sought on that same ground. In Moti, it would have been no answer to the allegation of abuse of process for the respondent to say that there could be no prejudice to the integrity of the court because the same result might have been achieved lawfully, through the extradition process. Equally, given the nature and extent of the unlawful examinations and contraventions of the ACC Act, it cannot be an answer in this case to say that the same information might have been extracted from the appellants by lawful means, had there been a genuine investigation and had the examinations been conducted lawfully.
In summary, the unlawful examinations of the appellants involved a failure to comply with key provisions of the ACC Act. The improper purposes motivating that non-compliance were achieved. They substantially contributed to the preparation for, and therefore would substantially contribute to, any trial of the appellants. The compromise to the court's integrity, or the disrepute into which the administration of justice is brought, could only be remedied by one measure short of a permanent stay of proceedings. That measure would be orders ensuring destruction of the entire product of the tainted investigation that led to the charging of the appellants, and the giving of undertakings to the court wholly quarantining from a fresh investigation every investigator or prosecutor who had been involved with the investigation or the proceedings. It is telling that neither the ACC nor the CDPP ever suggested that it might be a realistic alternative to recommence, from scratch, an assessment of up to, or even more than, 80 million documents, but without the benefit of the appellants' unlawful examinations. To use the primary judge's metaphor, the egg could not be unscrambled. Allowing the trials to proceed would undermine the statutory regime and compromise the integrity of the court.
The decision of the primary judge should be restored
For the reasons above, the decision of the primary judge to grant a permanent stay should be restored. Two further matters should be mentioned. The first should be mentioned because of its prominence in submissions. The second should be mentioned despite its absence from submissions.
First, a central issue in dispute on these appeals was whether the primary judge was correct to characterise the state of mind and conduct of the ACC examiner as reckless. The Court of Appeal held that this description by the primary judge was erroneous because the ACC examiner was not shown to have proceeded with knowledge of his obligations but without concern for them. However, her Honour's decision rightly did not depend upon the precise epithet used to describe the ACC examiner's state of mind and conduct. Whatever shorthand description is used, her Honour found that the ACC examiner exercised no independent judgment in relation to the central matters concerning the examinations.
Secondly, throughout these appeals the appellants referred many times to the "discretionary" decision of the primary judge. The CDPP carefully avoided the use of that adjective. But no doubt was cast by the CDPP upon the observation of four members of this Court in Batistatos v Roads and Traffic Authority (NSW) to the effect that judicial restraint should be exercised when considering an appeal from a decision to grant a permanent stay to protect the integrity of the court. That observation contrasts with the lack of judicial restraint on an appeal from a decision concerning the "public policy" exclusion of evidence to protect the integrity of the court in s 138(1) of the Evidence Act 2008 (Vic).
On the assumption that the decision of the primary judge was one about which judicial restraint should have been exercised on appeal, the conclusion that she reached was open to her. But even if the assumption of judicial restraint were abandoned, for the reasons I have expressed above the primary judge's decision was correct, as bolstered by the finding of the Court of Appeal that there was no special ACC investigation.
Conclusion
It is an extreme measure to stay proceedings permanently as an abuse of process on the basis that the administration of justice would be brought into disrepute. But a permanent stay can be ordered where, despite the public interest in prosecuting reasonably suspected crime, no less extreme remedial measure will sufficiently avoid the damage to the integrity of the court. The integrity of the court would be impaired by trials of the appellants. No lesser remedial measure was offered or available to prevent the stultification of key safeguards in the ACC Act and the achievement of the unlawful purposes for which those safeguards were contravened.