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[2018] HCA 53
appellant. Appeals allowed. Orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 25 May 2017 set aside and, in their place, order that the appeal to that Court be dismissed. Reasons...
The High Court held that the Australian Crime Commission unlawfully used its coercive examination powers at the AFP's request to force four suspected company executives to answer questions after they had refused voluntary police interviews. Because there was no actual ACC investigation under the governing determinations, the examinations were invalid. The examiner failed to exercise independent judgment, allowed police to watch secretly, and issued directions that let the prosecution see everything, locking the men into sworn versions of events and influencing which documents went into the brief. This gave the prosecution an unfair advantage that could not be fixed without restarting the entire investigation. The examiner's complete failure to consider statutory protections for fair trials amounted to reckless disregard. Allowing the prosecutions to continue would bring the justice system into disrepute, so the Court reinstated the permanent stays ordered by the trial judge.
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6 cited instruments linked from this judgment.
The four appellants, referred to by pseudonyms (Strickland, Galloway, Hodges and Tucker), were senior executives at a company pseudonymously called XYZ Ltd. In late 2008 the Australian Crime Commission (ACC) received information from an unregistered human source alleging that XYZ Ltd was involved in criminal activity, including possible foreign bribery. That activity fell outside the scope of the existing Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 made by the ACC Board under s 7C of the Australian Crime Commission Act 2002 (Cth) (the ACC Act). Rather than open its own investigation, the ACC referred the allegations to the Australian Federal Police (AFP) on 22 April 2009 and offered the use of its coercive examination powers. The AFP commenced Operation Thuja. By mid-2009 the AFP had obtained vast quantities of documents and hard drives from XYZ Ltd on a voluntary basis. The lead investigator, Schwartz, decided that where XYZ Ltd executives declined cautioned interviews the ACC's compulsive powers would be used instead.
Each appellant was invited to participate in a cautioned record of interview with the AFP and each declined. Between April and November 2010 they were summonsed to attend compulsory examinations conducted by ACC examiner Sage. The examiner was aware that each appellant was regarded by the AFP as a suspect who "may be charged" within the meaning of s 25A(9) of the ACC Act. During each examination between six and nine AFP officers involved in Operation Thuja watched from an adjacent room; their presence was not disclosed to the appellants, contrary to the obligation imposed by s 25A(7). Sage made non-publication directions under s 25A(9) that permitted the audio recordings and transcripts to be disseminated without restriction to the AFP and, later, to the Commonwealth Director of Public Prosecutions (CDPP). The primary judge found that Sage did not exercise any independent statutory judgment; he simply rubber-stamped requests made by Schwartz. The examination product was used by the AFP to "refine and define" document searches for the prosecution brief and to "lock" each appellant into a version of events on oath. Hodges, Strickland and Galloway were arrested and charged in July 2011; Tucker was charged in March 2013. The charges included conspiracy to bribe a foreign public official contrary to ss 11.5(1) and 70.2(1) of the Criminal Code (Cth) and, for some appellants, false accounting contrary to s 83(1)(a) of the Crimes Act 1958 (Vic).
The appellants applied for permanent stays. After a 57-day hearing the primary judge (Hollingworth J) granted the stays. Her Honour found that the examinations were not conducted for any ACC investigative purpose, that Sage had abrogated his responsibilities under the ACC Act, that the prosecution had obtained an incurable forensic advantage, and that the examiner's recklessness was so egregious that to allow the prosecutions to continue would bring the administration of justice into disrepute. The Court of Appeal (Maxwell P, Redlich and Beach JJA) allowed the CDPP's appeals. It held that the examinations were unlawful because they were not for the purposes of a special ACC investigation, but concluded that no incurable forensic disadvantage had been proved and that Sage's conduct, while seriously deficient, was not reckless. It considered that a change of prosecutorial team, undertakings, and trial directions would suffice to ensure a fair trial. The High Court granted special leave limited to the question whether a permanent stay was necessary to protect public confidence in the administration of justice. By majority (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ; Gageler and Gordon JJ dissenting) the Court allowed the appeals, set aside orders 2 and 3 made by the Court of Appeal, and ordered that the appeal to that Court be dismissed, thereby restoring the permanent stays.
The plurality (Kiefel CJ, Bell and Nettle JJ, with whom Keane and Edelman JJ agreed) began from the proposition that the ACC Act strictly confines the use of its compulsive powers. Section 24A permits an examiner to conduct an examination only "for the purposes of a special ACC operation/investigation". A special investigation is one that the Board has determined under s 7C(3) after considering whether ordinary police methods are likely to be effective. The plurality held that the Financial Crimes Determination and the later Money Laundering Determination did not themselves constitute special investigations; at most they authorised future investigations not yet identified. In fact, no ACC investigation into XYZ Ltd's activities was ever commenced. No head of investigation was appointed under s 46A(2A), no staff were assigned, and the ACC did nothing beyond acting as "a facility for the AFP to cross-examine under oath whoever the AFP wished, for the AFP's own purposes". Because the examinations were not conducted for the purposes of any special ACC investigation, they were unlawful from the outset.
That unlawfulness was compounded by the examiner's wholesale disregard of the safeguards in s 25A. The examiner permitted numerous AFP investigators to be present without informing the appellants (contrary to s 25A(7)) and made non-publication directions that positively facilitated dissemination to the entire AFP investigative team and the CDPP instead of protecting the appellants' fair trial rights (contrary to the mandatory obligation in s 25A(9)). The plurality accepted the primary judge's characterisation of this conduct as reckless, not in the strict criminal-law sense requiring advertence to the risk of unlawfulness, but in the sense of heedless indifference to the discharge of statutory responsibilities. Sage knew the appellants were suspects who had declined cautioned interviews yet he compelled them to answer for the very reason that they had exercised their right to silence. His "reasons" for issuing summonses simply parroted AFP requests. The Operating Procedures Document in force at the time expressly warned against examining persons likely to be charged and against allowing investigators or prosecutors access to their evidence. Sage ignored all of it.
The plurality then turned to the consequences. Drawing on the joint judgment of Hayne and Bell JJ in X7 v Australian Crime Commission (X7 (No 1)), it held that even if the examination product had been kept secret, the unlawful compulsion fundamentally altered the accusatorial process. The appellants could no longer make forensic choices at trial solely on the basis of the strength of the case revealed by the prosecution. They were locked into versions of events from which they could not credibly depart. In addition, the primary judge had found that AFP investigators used the examination product to guide selection of documents from tens of millions of pages for the prosecution brief. The selection of documents in a circumstantial case is itself a forensic choice; the appellants were deprived of the ability to test whether the brief represented a fair or complete selection. Because the dissemination had been widespread and undocumented, it was practically impossible to quarantine the taint. Short of a wholly new investigation with fresh investigators, the prejudice could not be cured. Trial directions or a change of prosecutorial team would be insufficient.
Finally, the plurality held that the combination of incurable forensic disadvantage and the examiner's reckless abrogation of statutory safeguards meant that to allow the prosecutions to continue would bring the administration of justice into disrepute. The Court emphasised that the right to silence is a fundamental of the accusatorial system at every stage, including the investigative stage. While statute may override it, any such override must be strictly construed. Here the ACC Act's safeguards had been ignored. Previous authorities such as X7 (No 2) were distinguished on the basis that they involved honest mistakes rather than the "grossly negligent abrogation of statutory responsibilities" seen in the present matters. Condoning such conduct would encourage further negligent infractions. The public interest in trying serious charges, while powerful, had to yield to the need to maintain the integrity of the criminal justice system. The appeals were therefore allowed and the permanent stays restored.
The dissenting judgments of Gageler J and Gordon J took a narrower view. Both accepted the examinations were unlawful but considered that the prejudice could be adequately addressed by replacing the prosecution team, obtaining undertakings from investigators, and giving trial directions prohibiting reference to the examinations. They emphasised that a permanent stay is a drastic remedy to be granted only in exceptional cases and that the public interest in trying serious white-collar crime should prevail.
Prior to Strickland the law concerning abuse of process in the context of compulsory examinations was shaped by several key decisions. In X7 (No 1) the Court held that post-charge compulsory examination of an accused under the ACC Act was unlawful because it altered the accusatorial process in a fundamental way. Hayne and Bell JJ emphasised that even secret answers would compel the accused to make forensic choices in light of compelled testimony. In Lee (No 1) Gageler and Keane JJ took a narrower view of legitimate forensic choice, observing that an ethical constraint on counsel not to contradict an examinee's own prior evidence did not necessarily amount to unfairness. Lee (No 2) then held that where examination transcripts reached the prosecution in breach of a non-publication direction, the trial was fundamentally altered and a substantial miscarriage of justice had occurred even though the prosecution had not sought to tender the transcripts. The Court stressed that the balance of power between prosecution and defence had shifted.
The plurality in Strickland synthesised these authorities. It followed the X7 (No 1) analysis of the accusatorial process but extended it to pre-charge examinations conducted for an unlawful purpose. It distinguished Lee (No 1) on the basis that the present case involved not merely a constraint on cross-examination but the positive use of compelled answers to shape the prosecution brief itself. It treated Lee (No 2) as confirming that unlawful dissemination that arms the prosecution with the examinee's defence is productive of incurable prejudice. The Court also drew on Moti v The Queen for the proposition that decided cases should not be read as exhaustively defining the categories of abuse of process. The principle of legality was reinforced: any statutory restriction on the right to silence must be perspicuously expressed and strictly construed.
After Strickland the law is clearer in two respects. First, the existence of a special ACC investigation is a jurisdictional fact; a Board determination alone is insufficient if no investigation is in fact undertaken. Second, reckless (in the sense of heedless) disregard of the examiner's obligations under s 25A can, when combined with incurable prejudice, justify a permanent stay even if there is no deliberate defiance of the Act. The decision emphasises that the ACC cannot lawfully act as a "hearing room for hire" for the AFP. The safeguards in s 25A are not optional; they are integral to the validity of any examination. Courts are now more likely to scrutinise the actual conduct of an investigation rather than accept formal determinations at face value. The decision also confirms that the right to silence operates pre-charge and that its statutory override must be exercised with meticulous care.
At [50] the plurality stated: "the determinations were incapable in and of themselves of constituting a special ACC investigation. At most, they amounted to authorisations for the conduct, in future, of investigations yet to be identified or undertaken and a stipulation that, if in future any such investigation were conducted, it would be a special ACC investigation." In plain English this means a piece of paper from the Board saying "we authorise an investigation into financial crime" does not magically create an investigation. There must be real ACC staff doing real ACC work; simply lending the examiner to the police does not qualify.
At [67] the Court observed: "If nothing else, the prosecution derived the forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial." Translation: once a suspect is forced to swear to a story, he cannot easily change it at trial without looking like a liar. That is a real and unfair advantage to the prosecution that the law does not permit.
On recklessness, at [82] the plurality said: "the primary judge was not wrong to characterise that abrogation of statutory responsibility as reckless. Plainly, her Honour used the term in the sense of heedlessness of or indifference towards the requirements of the ACC Act, and, semasiologically, that was an entirely apt description of Sage's lack of care in the discharge of the functions legislatively entrusted to him in his capacity as examiner." In ordinary language, even if Sage did not consciously think "this is illegal", his complete failure to think about his legal duties at all was so careless that the law treats it as reckless. That level of carelessness can justify a stay.
The closing passage at [95] is particularly powerful: "To allow the prosecutions of the appellants to proceed in these cases would so much bring the administration of justice into disrepute that the prosecutions should be stayed." Translation: sometimes letting a prosecution go ahead does more damage to public trust in the courts than letting a guilty person walk free. Here the executive's sloppy disregard of important legal protections crossed that line.
Strickland will be triggered whenever an investigative agency with coercive powers is used by police as a de facto compulsory interviewing service in circumstances where no genuine investigation by that agency is on foot. Specific triggers include: (1) the absence of any appointed head of investigation or assigned staff, so that the agency is merely providing a hearing room and examiner; (2) the examiner fails to exercise independent judgment and simply rubber-stamps police requests as to who should be examined and what questions should be asked; (3) the examiner knows the examinee has declined a cautioned interview yet proceeds for the explicit purpose of "locking in" the examinee or assisting the police brief; (4) secret observation by investigators without disclosure under s 25A(7); and (5) non-publication directions that facilitate rather than prevent dissemination to investigators and prosecutors, contrary to the mandatory duty in s 25A(9) where a person "may be charged".
The precedent is not limited to the ACC. Any State or Commonwealth agency exercising similar coercive powers (for example, under the Independent Broad-Based Anti-Corruption Commission Act or Crime Commission legislation) will be measured against the same standards. The combination of unlawful purpose, reckless disregard of statutory safeguards, and incurable prejudice (particularly widespread undocumented dissemination that cannot be quarantined) will ordinarily require a permanent stay. Conversely, an honest mistake or a contained dissemination that can be cured by a fresh team and strict directions will not trigger the precedent. The fact that the underlying charges are serious white-collar offences does not lessen the requirement for strict compliance; if anything, the complexity of documentary cases makes the risk of incurable taint greater.
Although the judgment itself post-dates most of the authorities it cites, the plurality's treatment of earlier decisions has already shaped subsequent reasoning. The Court followed the accusatorial-process analysis of Hayne and Bell JJ in X7 (No 1) and applied the miscarriage-of-justice reasoning in Lee (No 2). It distinguished the narrower view of forensic choice expressed by Gageler and Keane JJ in Lee (No 1), emphasising that the present case involved positive use of compelled material to shape the brief rather than a mere ethical constraint on counsel. The distinction drawn between X7 (No 2) (honest mistake, curable prejudice) and the present facts (grossly negligent disregard, incurable prejudice) has narrowed the circumstances in which courts will refuse a stay once serious executive default is shown. The insistence that Board determinations cannot create an investigation in the absence of actual investigative activity has reinforced the jurisdictional-fact approach to coercive powers. Later courts are therefore likely to examine the reality of agency activity rather than formal authorisations. The affirmation that recklessness can include heedless indifference, rather than only advertent risk-taking, has lowered the mental-element threshold for abuse-of-process findings in this context. Overall, Strickland has strengthened the protective force of the statutory safeguards that accompany coercive powers and has made permanent stays more readily available where those safeguards are ignored in a widespread or undocumented manner.
The judgment leaves several important questions unresolved. First, the precise degree of dissemination or use that renders prejudice "incurable" is not spelt out. The plurality accepted that in some cases a change of team and undertakings might suffice, yet on these facts the undocumented spread to dozens of officers made quarantine impossible. Future cases will require close factual analysis of dissemination logs and the extent to which the brief was shaped by compelled material. Second, the boundary between "heedless indifference" that justifies a stay and mere "incompetence" that does not remains fluid. The plurality used the language of recklessness in the sense of indifference, but Gageler J preferred to characterise the examiner's conduct as a failure to exercise independent judgment. Trial judges will need to calibrate the mental element carefully. Third, the interaction between s 12 of the ACC Act (obligation to pass evidence to law enforcement) and the fair-trial protections in s 25A(9) is not fully worked through. The plurality noted the tension but did not provide a comprehensive hierarchy. Finally, the standing of an intervener such as the ACC to make submissions that the CDPP does not adopt was left on a narrow procedural basis; the deeper constitutional question of third-party intervention in criminal proceedings remains open. These gaps mean that Strickland, while a strong statement of principle, will require further litigation before its full contours are settled.
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS RESPONDENTS
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS RESPONDENTS
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS RESPONDENTS
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS RESPONDENTS
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions Donald Galloway (a pseudonym) v Commonwealth Director of Public Prosecutions Edmund Hodges (a pseudonym) v Commonwealth Director of Public Prosecutions Rick Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 8 November 2018 M168/2017, M174/2017, M175/2017 & M176/2017
Set aside orders 2 and 3 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 25 May 2017 and, in their place, order that the appeal to that Court be dismissed.
Subject to orders 4 and 5, the reasons for judgment of the Court be made available from the High Court Registry only in their redacted form and by request, subject to payment of the prescribed fee.
The full, unredacted reasons for judgment of the Court be provided to the parties and their legal representatives.
Pursuant to s 77RE(1) of the Judiciary Act 1903 (Cth), it being necessary to prevent prejudice to the proper administration of justice under s 77RF(1)(a) of the Judiciary Act, there be no disclosure other than disclosure in accordance with order 4, whether by publication or otherwise, of the full, unredacted reasons for judgment of the Court until 10:00am on Wednesday, 14 November 2018 or further order.
There be liberty to apply within 5 days for orders to continue the suppression or non-publication of any of the redacted sections of the unredacted reasons for judgment of the Court.
C G Mandy for the appellant in M168/2017 (instructed by Jimmy Lardner Lawyers)
M P Cahill SC with M D Stanton for the appellant in M174/2017 (instructed by Hicks Oakley Chessell Williams)
B W Walker SC with G H Livermore and C E Currie for the appellant in M175/2017 (instructed by Holding Redlich)
P F Tehan QC with C T Carr for the appellant in M176/2017 (instructed by Slades & Parsons Solicitors)
W J Abraham QC with K T Armstrong for the first respondent in all matters (instructed by Director of Public Prosecutions (Cth))
S P Donaghue QC, Solicitor-General of the Commonwealth, with S J Maharaj QC and G A Hill for the second respondent in all matters (instructed by Australian Government Solicitor)
Submitting appearances for the third, fourth and fifth respondents in each matter
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions Donald Galloway (a pseudonym) v Commonwealth Director of Public Prosecutions Edmund Hodges (a pseudonym) v Commonwealth Director of Public Prosecutions Rick Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions
Criminal practice - Abuse of process - Where Australian Crime Commission ("ACC") received information concerning allegations that company involved in criminal activity - Where allegations referred to Australian Federal Police ("AFP") - Where appellants declined to participate in cautioned record of interview with AFP - Where appellants compulsorily examined by ACC - Where examiner aware that appellants were suspects who may be charged with an offence - Where examiner permitted AFP officers to watch examinations from nearby room without disclosing their presence to appellants - Where examiner permitted dissemination of examination material to AFP and Commonwealth Director of Public Prosecutions - Where appellants subsequently charged with Commonwealth and Victorian offences - Where appellants sought permanent stay of prosecutions for abuse of process - Where primary judge permanently stayed prosecutions - Where Court of Appeal of Supreme Court of Victoria allowed appeals from orders of primary judge - Whether ACC conducted special investigation under Australian Crime Commission Act 2002 (Cth) - Whether examinations unlawful - Whether prosecution derived forensic advantage from examinations - Whether appellants suffered forensic disadvantage as result of examinations - Whether examinations unlawful infringement upon appellants' right to silence - Whether examiner's conduct reckless - Whether permanent stay necessary to prevent administration of justice falling into disrepute.
Words and phrases - "abuse of process", "administration of justice", "coercive powers", "compulsive powers", "compulsory examination", "derivative use", "direct use", "dissemination of examination product", "fair trial", "forensic advantage", "forensic choice", "forensic disadvantage", "illegally obtained evidence", "improper purpose", "integrity of the court", "locked in", "may be charged", "non-publication directions", "permanent stay", "prejudice", "prosecution brief", "prosecutorial team", "reckless", "right to silence", "special investigation", "suspect", "trial directions", "unlawfully obtained evidence".
Australian Crime Commission Act 2002 (Cth), ss 7C, 46A, Pt II Div 2.
KIEFEL CJ, BELL AND NETTLE JJ. These are appeals from a decision of the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Redlich and Beach JJA) allowing appeals from orders of the primary judge permanently staying prosecutions of the appellants for offences contrary to the Criminal Code (Cth) and, in some cases, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic). The appellants were compulsorily examined by the Australian Crime Commission ("the ACC") in 2010 prior to being charged with those offences. The principal issue in each appeal is whether the ACC acted so much in disregard of the requirements of Div 2 of Pt II of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") as it then stood, and therefore in unlawful violation of each appellant's common law right to silence, that the prosecutions should be stayed. Relevant statutory provisions The ACC is established by s 7 of the ACC Act. Section 7A(c) provided at the time of the examinations that the functions of the ACC included investigating, when authorised by the Board of the ACC, matters relating to federally relevant criminal activity. The Board was constituted by s 7B of the ACC Act and comprised the Commissioner of the Australian Federal Police, the Commissioner or head of the police force of each State and Territory, the Secretary of the Attorney-General's Department, the Chief Executive Officer of Customs, the Chairperson of the Australian Securities and Investments Commission, the Director‑General of Security, the Chief Executive Officer of the ACC ("the CEO") and the Commissioner of Taxation. The Commissioner of the Australian Federal Police was the Chair of the Board. Section 7C(3) provided that the Board may determine in writing that an investigation into matters relating to federally relevant criminal activity is a special investigation. Before doing so, however, the Board must consider whether ordinary police methods of investigation into the matters are likely to be effective. Section 7C(4) provided that a determination that an investigation is a special investigation must describe the general nature of the circumstances or allegations constituting the federally relevant criminal activity, state that the relevant crime or crimes is or are an offence or offences against a law of the Commonwealth, a State or a Territory, and set out the purpose of the investigation. Section 46A(2A) provided that as soon as practicable after the Board authorises in writing the ACC to investigate matters relating to federally relevant criminal activity, the CEO must determine in writing the head of the investigation. Section 46B provided for the appointment by the Governor‑General of a person who has been enrolled as a legal practitioner for at least five years as an examiner. Division 2 of Pt II of the ACC Act provided for the conduct of examinations by the ACC. Section 24A provided that an examiner may conduct an examination "for the purposes of a special ACC operation/investigation". A special ACC investigation was defined in s 4(1) as an investigation into matters relating to federally relevant criminal activity that the ACC is conducting and that the Board has determined to be a special investigation. Section 28(1) provided that an examiner may summon a person to appear before an examiner at an examination to give evidence and produce documents or other things as are referred to in the summons, but s 28(1A) provided that before issuing a summons the examiner must be satisfied that it is reasonable in all the circumstances to do so and also record in writing the reasons for the issue of the summons either before or at the same time as the issue of the summons. Section 28(5) provided so far as is relevant that an examiner may at an examination take evidence on oath or affirmation and for that purpose require a person appearing at the examination to give evidence to take an oath or affirmation. Section 28(7) provided so far as is relevant that the powers conferred by s 28 are not exercisable except for the purposes of a special ACC investigation. Section 30(2)(b) provided that a person appearing as a witness at an examination before an examiner shall not refuse or fail to answer a question that the examiner requires the person to answer. Section 30(6) provided that a person who fails to answer is guilty of an indictable offence punishable by up to five years' imprisonment. Section 30(4) and (5) provided so far as is relevant that if before answering a question a person claims that the answer might tend to incriminate the person or make the person liable to a penalty the answer is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than confiscation proceedings or a proceeding in respect of the falsity of the answer. Section 25A(3) provided that an examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or part of the examination. Section 25A(6) provided so far as is relevant that at an examination a witness may, so far as the examiner thinks appropriate, be examined or cross-examined on any matter that the examiner considers relevant to the special ACC investigation by counsel assisting the examiner, any person authorised by the examiner to appear at the examination or any legal representative of the person at the examination. Section 25A(7) provided that if a person other than a member of the staff of the ACC is present at an examination while another person ("the witness") is giving evidence, the examiner must inform the witness that the person is present and give the witness an opportunity to comment on the presence of the person. Section 25A(8) provided that a person does not cease to be entitled to be present at an examination or part of an examination if the examiner fails to comply with s 25A(7). Section 25A(9) provided so far as is relevant that an examiner may direct that any evidence given before the examiner must not be published or must not be published except in such manner and to such persons as the examiner specifies, and further provided that the examiner must give such a direction if the failure to do so might prejudice the fair trial of a person who has been or may be charged with an offence. The facts The primary judge found that, for every special investigation authorised by the Board, the CEO nominated a head of investigation under s 46A(2A) of the ACC Act, and that the position was referred to within the ACC as the Head of Determination ("the HOD"). While the determination for an investigation remained on foot, the HOD identified projects that he or she considered could appropriately be pursued under the determination. For each such project, the HOD prepared an application to the relevant internal management committee, seeking approval for the work to be undertaken. To begin with, the relevant internal management committee was called the Governance Operations Committee ("the GOC"). Later, the GOC was replaced by the Organised Crime Management Committee ("the OCMC"). Those committees were set up to assist the CEO in his or her responsibility to manage, co‑ordinate and control ACC investigations. Each committee was chaired by an Executive Director and consisted of all HODs, State and National Managers, and other senior members of staff of the ACC and met, on average, two to four times per month, to consider project applications, reports and other operational matters. Applications for project approval set out the significance of the proposed work, its alignment with determination objectives, the resources required, the expected outcomes, and any legal advice as to the legality of the proposed activity. The GOC/OCMC determined whether the project should be undertaken. If a project were approved by the GOC/OCMC, resources were applied, which may have included analysts, investigators, lawyers and examiners who would identify how best to achieve the project aims. In the case of special ACC investigations, that may have involved conducting compulsory examinations. If a potential witness for examination was identified, an application would be made to an examiner. On 25 June 2008, the Board made the Australian Crime Commission Special Investigation Authorisation and Determination (Financial Crimes) 2008 ("the Financial Crimes Determination") under s 7C authorising the ACC to investigate "the matter mentioned in Schedule 1 relating to federally relevant criminal activity until 30 June 2009". The following appeared in Sched 1 cl 1 under the heading "Investigation": "An investigation to determine whether, in accordance with the allegations mentioned in clauses 3 and 4 and in the circumstances mentioned in clause 2, federally relevant criminal activity: (a) was committed before the commencement of this Instrument; or (b) was in the process of being committed on the commencement of this Instrument; or (c) may in future be committed." Clause 2 of Sched 1 identified the circumstances which were said to comprise the federally relevant criminal activity as follows: "The general nature of the circumstances constituting federally relevant criminal activity that may have been, may be being, or may in future be, committed are those implied from information available to Australian law enforcement agencies indicating: (a) reports made by cash dealers under the Financial Transaction Reports Act 1988 or by reporting entities under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 may be linked to persons or entities suspected of involvement in relevant criminal activity, or of their nature indicate suspicious activities pointing to likely involvement of entities involved in relevant criminal activity; (b) the failure of persons suspected of involvement in relevant criminal activity to lodge income tax returns over a number of years; (c) the acquisition of assets totally disproportionate to declared income or non‑declaration of income by persons suspected of involvement in relevant criminal activity; (d) that business structures and financial arrangements of organised crime entities are becoming increasingly complex and are making use of professional facilitators, intermediaries and financial services providers in Australia and overseas; (e) that criminal enterprise structures are increasing their global networking and employ the inter‑mingling of legitimate funds and proceeds of crime and are participating in otherwise legitimate commercial enterprises; (f) effective targeting of the business structures of organised crime entities requires a multi‑agency intelligence driven approach at a national level with access to coercive powers." As to the allegations said to constitute the federally relevant criminal activity, cl 3 of Sched 1 stated that: "The general nature of the allegations that federally relevant criminal activity may have been, may be being, or may in future be, committed, is that from 1 January 1995 certain persons in concert with one another or with other persons, may be engaged in one or more of the following activities: (a) money laundering within the meaning of the Proceeds of Crime Act 1987; (b) dealing with money or other property contrary to sections 400.3, 400.4, 400.5, 400.6(1), 400.6(2) or 400.7(1) of the Criminal Code; ..." That was followed by a list extending over three A4 pages of more than 70 different offences against Commonwealth and State laws ranging from money laundering through to offences of general dishonesty, customs offences, currency offences and violence related offences, as well as "such other incidental offences the head of this ACC special investigation suspects may be directly or indirectly connected with, or may be a part of, a course of activity involving" the commission of any of some 58 of the offences specifically identified plus "other unlawful activities that are related to or connected with [those] activities and that involve relevant offences against a law of a State [defined to include the Australian Capital Territory and the Northern Territory] that have a federal aspect". Clause 6 of the Financial Crimes Determination provided under the heading "Determination" that: "Pursuant to paragraph 7C(1)(d) and subsection 7C(3) of the [ACC] Act, the Board: (a) has considered whether ordinary police methods of investigation into the matter mentioned in Schedule 1 relating to federally relevant criminal activity are likely to be effective; and (b) determines that the investigation mentioned in Schedule 1 is a special investigation." Clause 9 of the Financial Crimes Determination identified the purpose of the investigation as follows: "The purpose of the investigation is: (a) to collect and analyse criminal information and intelligence relating to the federally relevant criminal activities, to disseminate that information and intelligence in accordance with the [ACC] Act and to report to the Board; and (b) to identify and apprehend persons involved in the federally relevant criminal activities, to collect evidence about those activities and to reduce the incidence and effect of those activities; and (c) to make appropriate recommendations to the Board about reform of: (i) the law relating to relevant offences; and (ii) relevant administrative practices; and (iii) the administration of the courts in relation to trials of relevant offences." The GOC subsequently approved a project to deal with matters arising under the Financial Crimes Determination. In December 2008, the ACC received information from an "unregistered human source" concerning allegations that XYZ Limited was involved in criminal activity. That criminal activity was not one of the offences set out in Sched 1 cl 3 of the Financial Crimes Determination. In March and April 2009, the ACC conducted an initial assessment of those allegations. Based on that assessment, the Operations Manager of the Financial Crimes Program within the ACC produced an undated investigation proposal in which it was suggested that a GOC application be made for an operation to investigate the claims relating to XYZ Limited. The Operations Manager noted, however, that: "It is not the intention of the team to complete a complex full scale investigation at this stage, but rather to determine the validity of the claims made by the source and to identify opportunities for intelligence and evidence collection. There is also a significant foreign component of a full scale investigation which would require the cooperation of the Australian Federal Police and various overseas partner agencies." As the primary judge determined, the Operations Manager was not recommending a joint investigation involving the Australian Federal Police ("the AFP") but rather advising against a full scale investigation at that time because it would require bringing in the AFP and overseas agencies. The Operations Manager recommended instead that the next step should be to conduct preliminary discussions with a number of cooperative witnesses identified in the initial assessment by way of either examinations or "general discussion" with witnesses who were not implicated in the allegations of corruption. Significantly, the Operations Manager advised against the examination of employees who were likely to be implicated in the allegations. Further, as the primary judge also found, there was no evidence that the Operations Manager's recommendation was adopted. The ACC did not appoint a head of investigation or assign any of its staff to investigate the allegations involving XYZ Limited. Instead, on 22 April 2009, the ACC referred the allegations to the AFP and offered to allow the AFP to utilise the ACC's coercive powers. Thereafter, as the primary judge found, the ACC did not undertake any investigation of XYZ Limited of its own. It acted at all times "as a facility for the AFP to cross‑examine under oath whoever the AFP wished, for the AFP's own purposes". In late May 2009, the AFP formally commenced an investigation entitled "Operation Thuja" and a lead investigator was appointed. Initially, Operation Thuja was a broad-ranging investigation which concerned the culture within XYZ Limited and focussed on the company's activities. On 9 June 2009, a meeting was held between members of the AFP and ACC to discuss a "proposed" joint investigation into XYZ Limited and to "discuss future cooperation" between the AFP and the ACC. The ACC advised the AFP that it had a number of sources who could provide the AFP with further information regarding the allegations against XYZ Limited and reiterated its offer to make its coercive powers available to the AFP to pursue "agreed lines of enquiry". But as will become apparent, there never was any joint investigation. On 10 June 2009, the Board of the ACC resolved to extend the Financial Crimes Determination for a further 12 months, noting "the review of activity conducted" under the 2008 Determination and reaffirming "the view of the Board that the requirements of s 7C(3) … continue to be met". Pointedly, as the primary judge found, there was no amendment of the Financial Crimes Determination to include within its coverage the criminal activity alleged to have been engaged in by XYZ Limited. By July 2009, AFP officers had met with representatives of XYZ Limited on a number of occasions, and XYZ Limited had voluntarily provided the AFP with substantial documents and hard-drive material to assist with the AFP's investigation. The AFP had also approached the ACC to assist the AFP by providing the ACC's compulsive powers under the Financial Crimes Determination. It was proposed that ACC coercive hearings be used in circumstances where the AFP perceived that current XYZ Limited senior executives had knowledge of corrupt practices. By October 2009, the ACC had confirmed to the AFP that it was prepared to assist by holding examinations. On 6 November 2009, a meeting was held at the ACC's Melbourne office, attended by the lead investigator of Operation Thuja and ACC staff, during which a tentative timetable was set for the examination of XYZ Limited employees and managers who the AFP believed had knowledge of the conduct forming the basis of the allegations. The suspect was proclaimed to be XYZ Limited and all employees were to be viewed as witnesses, not suspects. Shortly after that meeting, Officer Schwartz became the lead investigator of Operation Thuja. On the same day, the Commissioner of the AFP (who was also the Chair of the Board of the ACC) gave Operation Thuja his approval to use the ACC's coercive examination powers. In January 2010, the former lead investigator of Operation Thuja expressed concerns that the Financial Crimes Determination did not cover the AFP's investigation of XYZ Limited's alleged criminal activity. He was overridden by Schwartz, however, and, by February 2010, the investigation had been extended to another company, QRS Limited, as well as XYZ Limited. In February 2010, Schwartz confirmed in an internal AFP minute: "The AFP has engaged the [ACC] in relation to Operation [Thuja] in order to extract information and evidence from witnesses and suspects by means of the ACC's coercive powers to conduct examinations. The hearings will be conducted pursuant to the ACC's Financial Crimes/Money Laundering Determination." On 12 March 2010, it was determined that no joint agency agreement between the AFP and the ACC was required because the examinations to be conducted by the ACC could take place under an existing memorandum of understanding and practical guidelines. Schwartz stated that as far as the AFP was concerned, the ACC was not even a partner in the AFP's investigation. He described the extent of the ACC's role as being a "facility used by the AFP for compulsory examinations of suspects". He described ACC examinations as "available to the police in all our investigations" and as "a common tool that is traditionally used by police". In April 2010, two of the appellants, Galloway and Hodges, were examined by the ACC, purportedly pursuant to the Financial Crimes Determination. On 9 June 2010, the Board of the ACC resolved to make a new determination, entitled the Australian Crime Commission Special Investigation Authorisation and Determination (Money Laundering) 2010 ("the Money Laundering Determination"), for which the Statement in Support stated as follows: "PURPOSE OF THIS STATEMENT
GAGELER J. The power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. The power is in that limited respect and to that limited extent a power to "safeguard the administration of justice". Within that basal proposition, in my opinion, lies the reason why these appeals should be dismissed. The administration of justice that has been brought into disrepute by the unlawful conduct of officers of the Australian Crime Commission ("the ACC") and of the Australian Federal Police ("the AFP") which founded the underlying applications for permanent stays of criminal proceedings against each appellant is the administration of justice by law enforcement agencies having responsibility for discharging the executive function of investigating criminal conduct. It is not the administration of justice by a court. The prior unlawful conduct of the ACC and the AFP does not bring into disrepute the administration of justice by the court that is seized of jurisdiction in the criminal proceedings subsequently commenced and maintained against each appellant by the Commonwealth Director of Public Prosecutions ("the CDPP"). To the extent that the prior unlawful conduct of the ACC and the AFP has the potential to impact adversely on the conduct of those criminal proceedings, there is no reason now to conclude that substantial unfairness in the conduct of those proceedings is incapable of being averted through the adoption by the trial judge of measures less drastic than ordering a permanent stay. A permanent stay has not been shown now to be necessary and, for that reason, a permanent stay is at this stage inappropriate. The appellants and the appeals By orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record, the appellant in each appeal has been assigned a pseudonym. The appellants are referred to as Mr Strickland, Mr Galloway, Mr Hodges and Mr Tucker. The company for which all of them once worked has been assigned the pseudonym XYZ Ltd. Each appellant stands indicted before the Supreme Court of Victoria on charges of having conspired with a wholly owned subsidiary of XYZ Ltd and with others to provide a benefit, not legitimately due, to a person with the intention of influencing a foreign public official in order to obtain or retain business contrary to provisions of the Criminal Code (Cth). Mr Strickland, Mr Galloway and Mr Hodges are also charged with dishonestly falsifying a document made for an accounting purpose contrary to a provision of the Crimes Act 1958 (Vic). On the pre-trial applications made by the appellants, which gave rise to an interlocutory hearing over some 57 days, the proceedings on each indictment were permanently stayed as an abuse of process by orders of the primary judge, Hollingworth J. The primary judge's conclusions that the proceedings should be stayed as an abuse of process were reached on the basis of extensive findings of fact. The core facts can be summarised as follows. In the course of an investigation by officers of the AFP and after exercising his right to decline a cautioned interview with officers of the AFP, each appellant was subjected to a compulsory examination purportedly conducted under the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). Each compulsory examination was conducted for the "purpose of achieving forensic disadvantage to [the appellant], and advantage to the prosecution, in foreseen future legal proceedings". To a varying degree in relation to each appellant, each compulsory examination achieved the result of occasioning forensic disadvantage to the appellant in the proceedings which were subsequently commenced by the filing of the indictments by the CDPP. The main forensic disadvantage to each appellant which the primary judge found that the examination had the purpose of achieving lay in the appellant being "locked in" to a version of events on oath from which the appellant could not credibly depart at trial. The additional forensic advantage to the prosecution which the primary judge found that the examination had the purpose of achieving lay in information obtained through the examination being available to be used to assist AFP officers to assemble the prosecution brief to be provided to the CDPP. To the extent the information was so used, its use carried the additional practical consequence of occasioning forensic disadvantage to each appellant by limiting the appellant's ability to cross-examine the AFP officers who assembled the prosecution brief with a view to casting doubt on the prosecution case. The primary judge held that the summoning and examination of each appellant by the ACC examiner, Mr Sage, was not unlawful and was not done for an improper purpose. However, her Honour found that Mr Sage had "automatically approve[d]" the AFP's requests for the examinations without considering the appropriateness of the requests, that he allowed investigating AFP officers secretly to observe the examinations from a nearby room without considering the potential impact on the right of each appellant to a fair trial, and that he made non-publication directions permitting dissemination of examination material to the AFP and to the CDPP without considering whether such dissemination might prejudice the right of each appellant to a fair trial. In taking those actions, the primary judge found that Mr Sage failed to exercise his examination powers independently and diligently and that he "completely disregarded" his statutory obligations to ensure that the examinations were conducted in such a way as to prevent the possibility of forensic prejudice to each appellant. Based on those findings, the primary judge was "satisfied that a permanent stay should be granted, not only as a result of the forensic disadvantage considerations, but also in order to protect confidence in the administration of justice". On appeal by the CDPP, the orders of the primary judge were set aside in a unanimous decision of the Court of Appeal constituted by Maxwell P, Redlich and Beach JJA. Contrary to the conclusions reached by the primary judge, the Court of Appeal held that the summoning and examination of each appellant was unlawful because the examinations were not conducted "for the purposes of a special ACC operation/investigation" within the meaning of s 24A of the ACC Act and because the examinations were conducted for the improper purpose of assisting in a criminal investigation conducted not by the ACC but by the AFP. Their Honours accepted that Mr Sage's non-publication directions were unlawful, but held that it was not open to the primary judge to conclude, as her Honour did, that Mr Sage's disregard of his statutory obligations to protect the integrity of the examination process could be characterised as "reckless". Further, the Court of Appeal did not accept that the compulsory examinations had been shown by the evidence adduced before the primary judge to have resulted in any forensic disadvantage to the appellants or forensic advantage to the prosecution which could not be remedied to an extent sufficient to ensure that the appellants are able to receive a fair trial. The remedial measures to which the Court of Appeal referred as available and appropriate to achieve that result were: the replacement of the CDPP prosecution team; the enjoining of ACC and AFP officers from disclosing information obtained as a result of the compulsory examinations to prosecutors or at all; the giving of directions by the trial judge to prohibit the leading of prosecution evidence or the revelation of information by AFP investigators in cross-examination if to do so would be productive of unfairness; and the exclusion of certain evidence by the trial judge if necessary, accompanied by appropriate directions. The Court of Appeal was also unable to discern anything in the improper purpose which it had identified, or otherwise in the circumstances of the case, which would bring the proceedings "into the exceptional category where a stay is necessary, absent unfairness, in order to preserve public confidence in the administration of justice". Each appeal to this Court is restricted by the grant of special leave to a single ground, the gist of which is to challenge the Court of Appeal's conclusion that a permanent stay is not necessary in order to preserve public confidence in the administration of justice. The ground is that the Court of Appeal erred in finding that the unlawful compulsion of answers from each appellant for the purpose of obtaining a forensic advantage to the prosecution was insufficient in "the circumstances" to justify the ordering of a permanent stay. Because devils lurk in the detail of "the circumstances", there is a need to note something of the consequences of the unlawful conduct for the trial process before turning to consider the significance of the purpose of that conduct and to respond to the principal argument developed by the appellants on the hearing of the appeals. The unlawful conduct and its consequences The conduct of the unlawful compulsory examinations by Mr Sage at the behest of officers of the AFP is comprehensively recounted in the reasons for judgment of the plurality. Despite the Court of Appeal's rejection of the primary judge's description of Mr Sage as having acted with "reckless indifference to his statutory obligations", I agree with the plurality that her Honour's description was an appropriate use of language. Having a purpose of his own which he consistently explained as no more complicated than "to get witnesses to tell the truth, and be forthcoming about their knowledge of the activities about which they were being examined", Mr Sage singularly failed to exercise the independent judgment required of an ACC examiner under the ACC Act. Instead, he allowed himself to become a conduit for a process driven from beginning to end by officers of the AFP for the purposes of conducting their own investigation. To describe his conduct using the metaphor of the primary judge, Mr Sage acted as a "rubber stamp" for the AFP officers, who were conducting their own investigation. Not only was each examination which Mr Sage conducted unlawful from the outset, both because the examination was not conducted for the purposes of any investigation into matters relating to federally relevant criminal activity which the ACC was in fact conducting and because the examination was conducted instead for the purposes of the AFP investigation, but Mr Sage failed in the course of those examinations to turn his mind to questions which he was statutorily obliged to consider in order to safeguard the interests of those he examined. He directed that AFP officers be present at each examination without inquiry as to who the various officers were and what role they played in relation to the investigation, arrest or prosecution of each appellant. He failed to inform each appellant of the clandestine presence of those officers. And, in defiance of the obligation of an examiner to give a direction that evidence given before the examiner must not be published "if the failure to do so might ... prejudice the fair trial of a person who ... may be ... charged with an offence", the non-publication directions he made imposed no restriction on the communication of any information extracted from each appellant to any officer of the AFP or of the CDPP. The upshot was that testimony containing admissions against interest was unlawfully extracted from each appellant under compulsion and unlawfully disseminated. The testimony became immediately available to be used by officers of the AFP conducting the investigation. In due course, the testimony was also provided to the CDPP. Flagrant as the unlawful conduct was, there is a need to be realistic about the extent of the potential for that conduct to impact on each appellant's trial. There has never been any suggestion that testimony given in the course of the examinations would be sought to be tendered at the trial. Had the examinations been lawful, direct use of the testimony in the trial would have been prohibited by the ACC Act. Had the examinations been lawful, derivative use of the testimony (in the sense of use of information contained in the testimony to obtain or assemble other evidence to be tendered at trial) would not have been prohibited by the ACC Act, except to the extent that a practical limitation on derivative use might have arisen from such restriction on communication as might have been imposed by a valid non-publication direction. There is no doubt that the officers of the AFP who were conducting the investigation made some derivative use of the testimony unlawfully extracted from the appellants. The prosecution case against each appellant to the extent it had been assembled at the time of the examinations was, as it remains, largely documentary. The derivative use of the testimony by the AFP officers lay in using information it contained to "refine and define" the search for documents to be included in the prosecution brief which the AFP provided to the CDPP. The primary judge and the Court of Appeal drew different inferences as to the extent of that derivative use. The primary judge inferred that the derivative use gave the AFP "a substantial investigative advantage". Noting that each AFP officer who gave evidence said that the derivative use was not extensive, and that it was no part of the appellants' case before the primary judge to establish the extent of that derivative use, the Court of Appeal reached the contrary conclusion. The prosecution case "had not materially changed as a result of the examinations". The difference between the primary judge and the Court of Appeal as to the extent of that derivative use is, in my opinion, immaterial. Even if it could be said that the extent of the derivative use of the unlawfully extracted and disseminated information in assembling the prosecution brief was sufficient to give the AFP a substantial investigative advantage, that investigative advantage did not of itself amount to a forensic advantage to the CDPP or disadvantage to the appellants. The primary judge did not find, and the appellants do not suggest, that the AFP's use of information contained in the testimony unlawfully extracted from the appellants in the search for documents to be included in the prosecution brief is likely to prejudice them in the conduct of the proceedings except in relation to the second of two potential sources of forensic prejudice to which I will turn. That leaves me to deal directly with the potential sources of forensic prejudice to each appellant in the conduct of the proceedings. Two have been identified. The first potential source of forensic prejudice lies in the appellants being constrained, in the overall forensic choices available to be made at trial, by the evidence each appellant has already been forced to give on oath. To the extent that such a limitation on forensic choice might be a source of forensic prejudice, it is a source of forensic prejudice which remains potentially applicable to Mr Strickland, Mr Tucker and Mr Hodges. That potential source of forensic prejudice can no longer be applicable to Mr Galloway, who has since chosen to make voluntary disclosure of the substance of the testimony extracted from him under compulsion. The second source of forensic prejudice, which remains potentially applicable to each appellant, lies in each of them being constrained (to the extent that his or another appellant's testimony might have been used by AFP officers to guide and refine their decision-making) in his ability to cast doubt on the prosecution case through cross-examining AFP officers as to the basis of the officers' choice of documents for inclusion in the prosecution brief. To cross-examine on that topic would run the risk of eliciting answers which reveal the fact of the examinations having occurred, if not the content of the testimony. For my own part, I see no reason to doubt the Court of Appeal's conclusion that both of those sources of potential prejudice to the appellants in the conduct of their defences at trial can, and therefore should, be adequately addressed by means less drastic than ordering a permanent stay. The guiding principle, as the Court of Appeal recognised, is that prejudice occasioned to a criminal defendant by circumstances outside a court's control ought to result in a permanent stay of criminal proceedings only if it is productive of substantial unfairness which cannot be substantially mitigated by the court exercising the control that it has over its own procedure. In relation to such prejudice as might potentially be occasioned to Mr Strickland, Mr Tucker and Mr Hodges by reason of them being constrained by the testimony involuntarily extracted in the forensic posture available to be taken at trial, I adhere to the view I expressed with Keane J in Lee v New South Wales Crime Commission ("Lee (No 1)"). My view as there expressed was and remains that, accepting that deprivation of a legitimate forensic choice otherwise available to a criminal defendant from whom testimony has been involuntarily extracted has the potential to give rise to unfairness amounting to an interference with the due course of justice in a particular case, deprivation of such a legitimate forensic choice is not to be found merely by reason of an ethical constraint on the ability of a criminal defendant's legal representatives to lead evidence or cross-examine or make submissions to suggest a version of the facts which contradicts that testimony. The defendant, of course, remains free to contradict or explain any previous testimony in the instructions he or she chooses to give to his or her legal representatives. To the extent that the defendant's instructions at trial depart from his or her previous testimony, his or her legal representatives are not disinhibited by the previous testimony from acting on those instructions. Indeed, they are bound to do so. Only to the extent that the defendant's instructions adhere to the previous testimony does the relevant ethical constraint arise. Even then, the ethical constraint on his or her legal representatives goes no further than to prevent them from suggesting a contrary version of the facts. The legal representatives are not constrained from making a submission, or from cross-examining in support of a submission, that the prosecution has failed to discharge its onus and burden of proof. I did not at the time of Lee (No 1), and I do not now, consider that view to have been contradicted by the observation of Hayne and Bell JJ in X7 v Australian Crime Commission to the effect that involuntarily extracted testimony, even if kept secret from the prosecution, might deprive a criminal defendant of the forensic advantage of being able to tailor his or her instructions as the prosecution case unfolds. The observation in Lee (No 1) was concerned to illustrate the more general point that not every deprivation of a forensic choice which would otherwise be available to a criminal defendant from whom testimony has been involuntarily extracted is properly to be characterised as giving rise to substantial unfairness. As Bathurst CJ noted in X7 v The Queen ("X7 (No 2)"), the observation in Lee (No 1) "emphasises the fact that the conduct of [a compulsory] examination may have different consequences depending on its nature and extent in any given case". For completeness, I record that, like Bathurst CJ in X7 (No 2), I do not consider the observation in Lee (No 1) to be inconsistent with the reasoning or the result in Lee v The Queen ("Lee (No 2)"). There, the Court concluded that a substantial miscarriage of justice had been occasioned by reason of involuntarily extracted testimony having come into the possession of the prosecution in contravention of a non-publication order. In the failure to quarantine the testimony from those involved in the prosecution of the charges, and not more generally, the trial of the appellants in that case was found to have "differed in a fundamental respect from that which our criminal justice system seeks to provide". The substantial miscarriage of justice was found to lie in the unremedied disclosure of the testimony causing "the balance of power" in the original trial to have "shifted to the prosecution". The result in Lee (No 2) was the quashing of the convictions and the ordering of a new trial. As to the remedial steps which could and should have occurred at the original trial, and which by implication might have been expected to guide the substantively fair conduct of the new trial which was ordered, it was said in Lee (No 2): "The prosecution should have inquired as to the circumstances in which the evidence came into its possession and alerted the trial judge to the situation, so that steps could be taken to ensure that the trial was not affected. The trial judge could have ordered a temporary stay, while another prosecutor and other DPP personnel, not privy to the evidence, were engaged." To the extent that the unlawfully extracted and disseminated testimony of the appellants has come into the possession of officers of the CDPP, engagement of a new prosecution team is precisely the kind of remedial measure which the Court of Appeal identified as available and appropriate to be implemented by the trial judge in the context of the pending proceedings against the appellants. To the extent that the unlawfully communicated testimony of the appellants remains within the knowledge of officers of the AFP, some of whom may be called as witnesses to explain their selection of documents, the contemplation of the Court of Appeal was that those officers would appropriately be prohibited from communicating that information to the new prosecution team or to anyone connected with the prosecution. As noted by Gordon J, measures of that kind have since been implemented in undertakings given to and accepted by the primary judge. In relation to such specific prejudice as might potentially be occasioned to the appellants by reason of them being constrained in their ability to cast doubt on the prosecution case in their cross-examination of those AFP officers who may be called as witnesses on the topic of their choice of documents for inclusion in the prosecution brief, I cannot see in the abstract why that prejudice would not be substantially mitigated by appropriately tailored interlocutory orders confining the scope of those witnesses' permitted testimony. Cross-examination is never at large, and a constraint on a witness being able to give probative evidence in comprehensive answer to a question asked in cross-examination is not necessarily productive of injustice. There is no obvious reason why the framing or implementation of orders confining the scope of the permitted testimony of the AFP officers would give rise to practical problems of a nature different from the problems which might be encountered in a case where relevant evidence is rendered inadmissible on the ground of client legal privilege or public interest immunity, or is excluded on the basis that it would reveal a confidential communication of the victim of an alleged sexual offence or that its probative value is substantially outweighed by the danger that it might be unfairly prejudicial. If a real and insurmountable problem were to be encountered in the course of cross-examination, the issue of a permanent stay could be re-agitated at that time. That brings me to the question of the purpose of the unlawful conduct. The purpose of the unlawful conduct It will be recalled that the purpose of the AFP officers conducting the AFP investigation, and derivatively the purpose of Mr Sage who simply did their bidding, was twofold. First, it was to "lock in" each appellant to a version of events on oath from which he could not credibly depart at trial. Second, it was to assist the AFP officers to assemble the prosecution brief. Significantly, neither element of that twofold purpose was an improper purpose in the conventional sense of a statutorily extraneous purpose which would render unlawful an examination which was otherwise lawful under the ACC Act. To the extent that any potential criminal defendant might be "locked in" to a version of events by having given evidence about them on oath before an examiner, that is the inevitable consequence of the form of compulsory examination which the ACC Act specifically authorises. And, as has already been noted, subject to limitations imposed by a non-publication direction, the ACC Act contains nothing to prohibit derivative use by officers of the AFP of testimony extracted in an examination. There is accordingly difficulty in seeing how the purpose of the examinations could suffice to justify a permanent stay of proceedings if the unlawfulness of the examinations could not. Unsurprisingly, the appellants' arguments as developed on the appeals focused less on the purpose of the examinations than on the extent of the departure from the statutory norm produced by the reckless indifference of Mr Sage to his statutory obligations. The extent of the departure, they argued, was such as to bring the criminal proceedings against each of them within the category of case where a permanent stay can be justified on the basis that "the use of the court's procedures would bring the administration of justice into disrepute". To that argument, I now turn. The administration of justice and its disrepute Ours is not a system of justice in which courts and law enforcement agencies exist in some sort of continuum. Between the two, there is a sharp, constitutionally mandated, division. Courts, in exercising their own powers, should be careful to guard against creating a tendency for the public perception of that division to become blurred. As I have emphasised from the outset, the power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. It is not a power to discipline or to punish those who might bring those proceedings or those who might stand behind them. Its focus is on prevention of the court's procedures being used in a manner that is inconsistent with the due administration of justice by the court. In a case where use of the court's procedures would be substantially unfair, the inconsistency lies in the administration of justice by the court being converted into an instrument of that substantial unfairness. In a case where use of the court's procedures would bring the administration of justice into disrepute, the inconsistency lies correspondingly in the tendency of the court, in permitting that use of its procedures to occur, to erode public confidence in the court's administration of justice in that and other cases. Where criminal proceedings are brought in a court by or on behalf of the executive, by or at the behest of a law enforcement agency, the function of the court is to adjudicate the controversy which at that point exists between the executive and the criminal defendant as to the existence and consequences of the criminal liability that is charged. Where such criminal proceedings are sought to be permanently stayed as an abuse of process on the application of the defendant by reference to the prior unlawful conduct on the part of officers of one or more law enforcement agencies or other officers of the executive, the focus of the requisite analysis must be on the effect of that conduct on the performance of that function. Two questions arise. How, if at all, does or might the unlawful conduct affect the proceedings? To the extent that the unlawful conduct does or might affect the proceedings, how, if at all, would permitting the proceedings to continue erode public confidence in the court's administration of justice? In Moti v The Queen, where the unlawful conduct of officers of the executive procured the criminal defendant's presence in the jurisdiction so as to meet a precondition to the commencement of the proceedings against him, those two questions were readily capable of being answered. The unlawful conduct facilitated commencement of the proceedings. And if the court had permitted the proceedings to continue, it would have been turning a blind eye to the invocation of its jurisdiction by conduct which was knowingly unlawful. In a case where criminal proceedings might be commenced or continued for an unlawful or otherwise illegitimate purpose, the same questions could readily be answered to similar effect. To permit the proceedings to continue would be implicitly to condone the use of the court's processes for that purpose. Were the same questions ever to be asked in a case where the unlawful conduct consists only of the obtaining of evidence on which the prosecution seeks to rely, however, different answers would almost certainly be given. The established position at common law, reflected now relevantly in uniform evidence legislation, is that the admissibility of evidence of that nature turns on a balancing of competing public interests: "the public need to bring to conviction those who commit criminal offences" and "the public interest in the protection of the individual from unlawful and unfair treatment". The rationale for the existence of a judicial discretion to exclude evidence on a balancing of those considerations has been variously explained in terms of "the public policy of not giving the appearance of curial approval to wrongdoing on the part of those whose duty is to enforce the law" and "the public policy that it is better that a possibly guilty accused be allowed to go free than that society or the courts sanction serious illegality or other serious impropriety on the part of officials in gathering the evidence with which to convict the accused". Never has it been suggested in any of the cases in which questions of admissibility of unlawfully obtained evidence have been considered in this Court, however, that the mere obtaining of such evidence or the mere attempt by the prosecution to rely on such evidence so affected the proceedings against the defendant as to have eroded public confidence in the court's administration of justice. In Ridgeway v The Queen, where the unlawful conduct of officers of the AFP went so far as to give rise to the offences into which the criminal defendant was entrapped and of which he was charged and convicted, the conviction was set aside and a permanent stay of proceedings was ordered. Of the six members of the Court who formed the majority, all rejected an argument to the effect that the whole of the prosecution evidence should be excluded on the basis that some of that evidence had been obtained through the unlawful conduct. Five members of the majority supported the order for a permanent stay on the basis that the illegally obtained evidence should be excluded and that the exclusion of the illegally obtained evidence led to the prosecution being unable to prove an element of the offence. The remaining member of the majority, Gaudron J, alone supported the order on the basis that the proceedings amounted to an abuse of process. Pivotal to the conclusion of Gaudron J in Ridgeway v The Queen that the criminal proceedings in that case amounted to an abuse of process was the proposition that "the administration of justice is inevitably brought into question, and public confidence in the courts is necessarily diminished, where the illegal actions of law enforcement agents culminate in the prosecution of an offence which results from their own criminal acts" on the basis that "[p]ublic confidence could not be maintained if, in those circumstances, the courts were to allow themselves to be used to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf". That proposition has no present relevance. Here, the unlawful conduct of officers of the ACC and the AFP did not give rise to the offences with which the appellants have been charged, did not result in the commencement of the criminal proceedings against the appellants, does not inform the CDPP's intention to continue those proceedings, and produced no evidence on which the CDPP intends to rely in the proceedings. Insofar as the unlawful conduct resulted in the appellants making admissions against their interests which were made available to officers of the AFP and of the CDPP and on which officers of the AFP derivatively relied in locating and assembling documents on which the CDPP does intend to rely in the proceedings, there are procedural measures available and appropriate to be taken by the trial judge to mitigate the resultant forensic prejudice to the appellants to an extent which is likely to avoid substantial unfairness in the conduct of the proceedings. Neither in permitting the proceedings to continue nor in implementing procedural measures for the purpose of avoiding substantial unfairness in the conduct of those proceedings can the court seized of jurisdiction in the proceedings realistically be characterised as tolerating or excusing the unlawful conduct which has occurred. The effect of the unlawful conduct on the conduct of the proceedings, in my opinion, is not such as to undermine public confidence in the administration of justice by that or any other court. Courts must be made of sterner stuff lest the public's confidence in them be eroded by their own timidity. Conclusion The circumstances capable of giving rise to an abuse of process are not confined to closed categories, and the ordering of a permanent stay of proceedings is in every case an exercise of power that is discretionary in nature. The question whether criminal proceedings should be permanently stayed as an abuse of process is to be determined by balancing considerations which bear in competing ways on the public interest. Nothing I have written should be read as denying the possibility of a case where unlawful conduct on the part of law enforcement agencies in investigating criminal conduct, which has not resulted in irremediable forensic unfairness or in the undermining of public confidence in the administration of justice in a court but which has occasioned some prejudice to a criminal defendant, might combine with other considerations to give rise to a misuse of a court's processes in a way which amounts to an abuse of process justifying the ordering of a permanent stay of criminal proceedings. The fact that no prior cases of that kind have been discovered through the researches of counsel suggests that, if there have been any at all, they must have been exceedingly rare. In my opinion, it is important that they should remain so. Ordering a permanent stay of criminal proceedings as an abuse of process, even on the ground of irremediable unfairness, has repeatedly been described as a "drastic remedy" to be confined to a case that is "exceptional" or "extreme". If the ordering of a permanent stay of criminal proceedings were ever to become other than exceptional, "it would not be long before courts would forfeit public confidence". Fundamental amongst the considerations to be weighed in determining whether criminal proceedings should be permanently stayed as an abuse of process is "the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime". That is because a permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant, leaving that criminal defendant under an "irremovable cloud of suspicion" and leaving the potential if not the likelihood of engendering within the community "a festering sense of injustice", if not cynicism. The public interest in the disposition of charges against a criminal defendant is no less in respect of criminal defendants charged with crimes of dishonesty than in respect of those charged with crimes of malice. Weighed in the present case, in my view that public interest should prevail.
KEANE J. For the reasons that follow, I agree with the orders proposed by Kiefel CJ, Bell and Nettle JJ. In my opinion, the decision by the primary judge to take the extraordinary step of staying the prosecutions of the appellants was warranted in the extraordinary circumstances of this case. To continue the criminal trials of the appellants would bring the administration of justice into disrepute; and that would be so whether or not the departures from the requirements of the Australian Crime Commission Act 2002 (Cth) ("the Act") on the part of the Australian Crime Commission ("the ACC") and Mr Sage enured to the forensic disadvantage of the appellants. In Moti v The Queen, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ adopted the statement of McHugh J in Rogers v The Queen that: "although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories: '(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.'" The focus of debate before the primary judge, in the Court of Appeal and in this Court has been upon the second and third of these categories of abuse of process. There may be cases where these categories overlap; but that will not always be so. In particular, so far as the third category is concerned, it is not necessary to show that the use of the court's procedures would occasion unjustifiable forensic disadvantage to one of the parties in order to warrant a stay of proceedings. It is sufficient to make out a case within the third category that the unlawful conduct that has occurred would affect the trial in prospect in a way that is contrary to the purpose of the applicable legislation. This Court's decision in Lee v The Queen ("Lee (No 2)") establishes that a conviction resulting from a criminal trial affected by unlawful conduct of a kind less grievous in degree than the lawlessness which occurred in this case will, for that reason alone, be a miscarriage of justice. In this case the primary judge was given no reason to conclude that the trials of the appellants can, or will, be quarantined from the effects of the lawless conduct which occurred. That being so, the appellants have made out their case for a stay by reference to the third category of abuse of process. Accordingly, it is, in my respectful opinion, unnecessary to consider whether any of the appellants would suffer a forensic disadvantage at his trial so as to bring his case within the second category referred to in Rogers and Moti. Gratefully adopting the summary by Kiefel CJ, Bell and Nettle JJ of the relevant legislative provisions, the facts, the reasons of the courts below and the contentions of the parties, I proceed directly to explain the reasons for my conclusion. The unlawfulness of the examinations The first step in the appellants' case involves a consideration of the nature and extent of the unlawfulness that attended their examinations. Sage's disregard of the requirements of the Act is described by Kiefel CJ, Bell and Nettle JJ. Sage's failure to observe the requirements of sub‑ss (7) and (9) of s 25A compounded the ACC's disregard of the statutory constraints on its power to carry out compulsory examinations. The Court of Appeal held, rightly, that the disregard of the requirements of the Act by the ACC and by Sage rendered the examinations of each of the appellants unlawful. It is not necessary to rehearse the conclusions of the Court of Appeal in this regard; it is sufficient to say that the departures from the requirements of the Act on the part of the ACC and Sage, as found by the Court of Appeal, were so serious and extensive that they produced a situation where each of the appellants is confronted by the prospect of a criminal trial in circumstances contrary to the purpose of the Act. Is reckless disregard of the law the test? The primary judge, focusing upon s 25A(9) of the Act, described Sage's disregard of its requirements as "reckless". The Court of Appeal disagreed with that description on the basis that Sage's disregard of his statutory obligations in relation to the publication of the results of the examinations to investigators and prosecutors could properly be described as reckless only if Sage had been found to have been aware of the possibility that s 25A(9) of the Act required a non‑publication direction in relation to investigators and prosecutors, and allowed publication to occur anyway. The Court of Appeal concluded that, because the primary judge did not, and could not, make a finding that Sage was so aware, a case of abuse of process within the third category was not made out by the appellants. The search for an appropriate epithet to describe the conduct of Sage (or that of the ACC more broadly) should not distract from the real issue presented by the third category of abuse of process in this case: whether the disregard of the requirements of the Act by Sage and the ACC was such that the administration of justice would be brought into disrepute if the courts were to allow the prosecutions to proceed. The Act provides for the compulsory examination of persons by the ACC and the protection of any trial of such persons that may ensue. The implementation of the Act is necessarily dependent upon the diligence and competence of the responsible officers of the ACC. That is no less so in relation to the observance of the Act's safeguards of the integrity of any criminal trial in prospect than it is in relation to the obtaining of information by compulsory examination. The statutory scheme is predicated on the assumption that those officers of the ACC charged with the implementation of the scheme will bring to the discharge of their duties the irreducible minimum level of diligence necessary to give effect to the requirements of the Act, both in relation to the carrying out of the investigation, and by ensuring that the protections afforded to the integrity of any criminal trial in prospect are maintained. This assumption was falsified by the ACC and Sage. Whether that failure to act with the irreducible minimum of diligence assumed by the legislation occurred by reason of a deliberate or reckless disregard of the law or by reason of supine incompetence is neither here nor there. Failure for either reason was apt to defeat the purpose of the Act. It may be accepted that, for some kinds of criminal offences, a lack of understanding by a person of certain matters may preclude a finding of recklessness on the part of that person. But here the issue is whether it would bring the work of the courts into disrepute if they were to facilitate a proceeding pursued in defiance of the legislative will by an agency of the executive government. In this context, there is no reason to draw a distinction between a deliberate or reckless disregard of the requirements of the Act by agents of the executive government on the one hand, and an incompetent disregard of the law on the other. In either case, the disregard of the law leads to an episode of lawlessness apt to defeat the purpose of the Act. Accordingly, the Court of Appeal erred in concluding that the appellants' case failed because Sage could not be described as having been reckless in his disregard of the requirements of the Act. Were the proceedings affected? The next question to be addressed is whether the proceedings brought against the appellants are affected by the lawless conduct of the ACC and Sage. It is to be noted that this is not to ask whether the appellants will suffer any forensic disadvantage at their trials; rather, it is to inquire as to whether the unlawfulness will alter the trial in a way that is contrary to the purpose of the Act. Section 25A of the Act prescribes the circumstances in which a compulsory examination may occur. It is evident that it does so with an eye to the trial which may ensue from a compulsory examination. Section 25A(7) is relevant in this regard; but more particularly s 25A(9) discloses an intention that the investigators and prosecutors should be armed with information obtained by compulsory process only if the fair trial of an examinee would not be prejudiced thereby. The safeguards prescribed by the Act, and in particular s 25A(9), are integral to the legislative scheme for compulsory examination. The evident purpose of the Act is that a person who has been compulsorily examined under the Act and who comes to be tried for an offence related to the subject matter of the compulsory examination should then be subject to the ordinary processes of a criminal trial under the general law. Given that the provisions of s 25A(9) relating to non‑publication are expressly intended to prevent investigators or prosecutors being armed with information lawfully obtained pursuant to s 25A where that might adversely affect the fair trial of an examinee, it is no stretch to conclude that it is contrary to the purpose of the Act that investigators and prosecutors be armed in relation to a prospective trial with information obtained unlawfully as a result of the pretended observance of the Act that would alter the trial in a fundamental way. The failure to comply with the requirements of the Act by the ACC and Sage was, in its effect, contrary to the purpose of the Act in this regard. As will be seen, so much is established by Lee (No 2). Lee (No 2) In focusing on whether the lawless conduct of the examinations by the ACC and Sage resulted in particular forensic disadvantage to each appellant, the Court of Appeal failed to recognise that the trial process was affected by that conduct whether or not the appellants' prospects of acquittal were diminished thereby. If the unlawful conduct of the ACC and Sage was not apt to affect the appellants' trials, there would be no reason to stay the trial. If the unlawful conduct was not apt to have that effect, to grant a stay of proceedings would be to impose a kind of punishment on these agents of the executive government; and that is not a proper basis for the exercise of the power to stay proceedings as an abuse of process. But to show that the trials in prospect were so affected as inevitably to lead to a miscarriage of justice, it is not necessary to point to any particular forensic disadvantage to any accused. This, too, is established by Lee (No 2). In Lee (No 2), the New South Wales Crime Commission had failed to comply with the terms of a direction made by it under a provision of New South Wales legislation analogous to s 25A(9) of the Act. As a result, prior to the trial of two examinees, the transcripts of their evidence were published to the police and the officers of the Director of Public Prosecutions engaged in the trial. The appellants were convicted at trial. This Court was unanimous in holding that the publication altered the trial of the appellants in a fundamental respect so that a substantial miscarriage of justice had occurred. The Court said: "It is sufficient ... to focus attention upon the publication of the transcripts of the appellants' evidence before the Commission to the prosecution, directly to the DPP officer and indirectly through the police. The decision to do so, without regard to the protective purpose of [the analogue to s 25A(9) of the Act], was not authorised by the [New South Wales law]. The publication to the DPP, in particular, was for a patently improper purpose, namely the ascertainment of the appellants' defences." It is important to appreciate that the appeals to this Court in Lee (No 2) were not "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." Rather, it was held that "[w]hat occurred … affected this criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused." For this alteration in the respective positions of accuser and accused at trial there was no legislative authority. The alteration occurred in defiance of the legislation. As the Court in Lee (No 2) explained: "Indeed, [the alteration] occurred contrary to the evident purpose of [the analogue to s 25A(9)], directed to protecting the fair trial of examined persons." The same may be said here. As in Lee (No 2), the prosecution unlawfully ascertained the appellants' defences by reason of the disregard of the requirements of the Act. The unlawful disregard by the ACC and Sage of the requirements of the Act was not only inexcusable; it was also apt to defeat the legislative purpose that the criminal trial of an examinee should not be affected by lawless conduct which occurred in pretended compliance with the Act. A conviction obtained at such a trial would inevitably be set aside as a miscarriage of justice, irrespective of whether a particular forensic disadvantage to the accused were able to be demonstrated. The concern is not with whether the accused has been disadvantaged, but with the preservation of the integrity of the trial process that the Act has in view. Lee (No 2), and the present case, may be contrasted with the line of cases of which Bunning v Cross is the leading example. In Bunning v Cross, the issue was whether the information obtained by a wrongful interference with the liberty of the defendant should be excluded from the trial in the exercise of a judicial discretion to exclude evidence obtained unlawfully. There was no suggestion that the legislation in issue concerned itself with, and discountenanced, the use at trial of evidence so obtained. The issue was one of fairness in relation to the admissibility of evidence obtained by a trespass to the person. As Barwick CJ said, the question was: "whether the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency, it should be rejected." In the present case, the issue is not about the exercise of judicial power, uninstructed by legislation, to strike a balance between the public interest in the enforcement of the law against those who may have committed an offence and unfairness to the alleged offender, where the unfairness in question may have involved a breach of the law such as a breach of property rights or an interference with personal liberty. In Bunning v Cross, the legislation in question was silent as to the forensic use of the evidence so obtained. Stephen and Aickin JJ pointed out that the unlawfulness of concern in that case related to the interference by police with the personal liberty of the accused in obtaining the evidence in question rather than unlawfulness in the forensic use of the evidence so obtained. Such a case may be contrasted with one, like Lee (No 2), where the legislation expresses a concern as to the forensic use of information obtained pursuant to it. It is integral to the purpose of the Act that the facility for compulsory examination that it provides should operate to ensure that an examinee who comes to be charged is tried in accordance with the ordinary processes of a criminal trial under the general law. While the Act does not expressly prohibit the pursuit of a prosecution where s 25A(9) has been ignored, it would be inconsistent with the purpose of the Act for a court to allow, much less to facilitate, that prosecution. In the present case, as in Lee (No 2), the legislation which has been disregarded discountenances the forensic use of information obtained in breach of its provisions. Accommodating the consequences of unlawfulness The issue reduces then to whether a court of trial might be required to alter the ordinary processes attending a criminal trial in order to neutralise the consequences of the ACC's failure to adhere to the Act without bringing the administration of justice into disrepute. In approaching this issue, the primary consideration must be that the courts, as the branch of government directly responsible for the administration of justice, should not give effect to a preference for the wishes of the executive government over the legislative purpose. It would put the courts at odds with the legislature if the courts were to take unusual steps specifically to accommodate a bid by the executive government to overcome a deficit in the integrity of a trial that arose solely by reason of the executive's disregard of the relevant legislation. That would bring the administration of justice into disrepute. In Lee (No 2), the convictions were set aside, and a new trial was ordered. The orders made by this Court in Lee (No 2) left to the presiding judge at the retrial the question whether the position of the accused vis‑à‑vis the prosecution had been restored so that the retrial in prospect would not be affected by the earlier unlawfulness. It was left as a matter for the judge at the retrial to determine whether sufficient steps had been taken by the prosecution to avoid the ongoing effect of the publication by the prosecution ensuring that "another prosecutor and other DPP personnel, not privy to the evidence, were engaged." In the present case, the primary judge was called upon to perform a task akin to that of the judge at the retrial ordered in Lee (No 2). The primary judge found that information from the examinations was used by the Australian Federal Police ("the AFP") to compile the prosecution brief and to obtain evidence which the AFP would not otherwise have been able to obtain. Further, the lack of clear records in respect of the dissemination of this material to AFP officers involved in the prosecutions made it difficult to determine by whom it had been used. Her Honour concluded that only the creation of a new investigative team to conduct a new investigation could remove the effect of the consequences of the departures from the Act upon the trials of the appellants. Her Honour was given no reason to be satisfied that this would, or could, occur. On that basis, her Honour's decision to stay the prosecutions was amply justified. The Court of Appeal, adopting a focus upon whether there was a prospect of actual forensic disadvantage to the appellants, concluded that the trial judge might give directions with a view to ensuring that the trials might proceed fairly to the appellants. For example, it was said that the trial judge might give directions to ensure that an investigator cross‑examined by counsel on behalf of the appellants should not explain his or her actions by reference to what the investigator had learned from the unlawful examinations. For the court to give directions so that the evidence at trial might be distorted in this way, for no reason other than to accommodate the lawlessness of the ACC and Sage, would bring the administration of justice into disrepute. It would be to embroil the court in the invidious process of accommodating the wish of the executive government to prosecute the appellants notwithstanding the executive's disregard of the legislative purpose that such accommodation should not be necessary. It would also detract from the fundamental presupposition of the trial that it is the jury that is to be the constitutional tribunal of fact. What is in contemplation by such measures is not a familiar and uncontroversial judicial process, such as the editing out of material that is irrelevant or insufficiently relevant to the fact‑finding function of the jury, but the judicial suppression of relevant evidence that might affect the jury's assessment of the credibility of the witness. Moti It may be noted that in Moti the majority stayed the further prosecution of criminal charges as an abuse of process because officers of the executive government of the Commonwealth had facilitated the deportation of the accused to Australia to stand trial, knowing that the deportation was unlawful under the law of the Solomon Islands. Their Honours held that the circumstance that the deportation of the accused from the Solomon Islands was unlawful "was a necessary but not a sufficient step towards a decision about abuse of process." In deciding that a stay of proceedings should be ordered, the majority went on to refer to two "fundamental policy considerations" that are material to whether the prosecution of criminal proceedings is an abuse of process. The first of these considerations was "the public interest in the administration of justice [that] requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike." The second consideration was that "unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice." In Moti these policy considerations were held to support the stay of the criminal proceedings. It is to be noted that these considerations did not fall to be applied in a context in which legislation had put in place protections to preserve the integrity of any criminal trial in prospect and in which the illegal conduct of the executive involved the disregard of these protections by the agency of the executive government specifically charged with the maintenance of these protections. Given the context in which these considerations fall to be applied here, the present case is a stronger case for the grant of a stay of proceedings than was Moti itself.
GORDON J. White collar crime affects individuals, business enterprises, institutions and sovereign states. The crimes are transactional; their reach and impact is often transnational. Controls of, and responses to, white collar crime extend beyond a single agency or state with the added complication that states take often quite different views on the criminality to be ascribed to certain conduct. White collar crime causes not only monetary losses but distrust in and between individuals, business enterprises, institutions and sovereign states. Over the last few decades, State, national and international measures have been developed to seek to address the nature and complexity of the detection and punishment of white collar crime. In Australia, after a series of Royal Commissions in the 1980s led to the creation of the National Crime Authority, the Australian Crime Commission ("the ACC") was established in 2003 to further reduce the incidence of serious and organised criminal activity and its impact on the Australian community. The appellants have been charged with serious white collar crimes which are alleged to involve individuals, corporations, institutions and various sovereign states. The appellants contend that the prosecution of those charges should be permanently stayed because aspects of the ACC's conduct before, during and after each appellant's compulsory examination by the ACC were not lawful. Accused persons have a right to a "not unfair" trial and it is the courts that decide what is fair, or not fair. Courts have powers to protect an accused's right to a fair trial. A permanent stay of a criminal trial for abuse of process is one of those powers. What will amount to an abuse of process sufficient to justify the grant of a stay cannot be defined exhaustively. Fairness to an accused is both relevant and important in assessing whether a stay should be granted; a public interest consideration that underpins the power to grant a stay is that "trials and the processes preceding them are conducted fairly". But it is not the only consideration. The grant of a stay is not about punishing investigators or prosecutors. It is to prevent the court's processes being used in a manner inconsistent with the recognised purposes of the administration of justice. There is, of course, a "substantial public interest" in having persons charged with criminal offences brought to trial. To grant a permanent stay of a criminal proceeding is "tantamount to a continuing immunity from prosecution". It is a drastic remedy. Often there are less drastic steps available to courts which are capable of preserving the fairness of a trial. And there is no defined list of such steps. The question raised by these appeals is whether, in all the circumstances, each appellant would receive a fair trial or whether, in any event, there should be a permanent stay of the prosecution of the charges against the appellants to prevent the court's processes being used in a manner inconsistent with the recognised purposes of the administration of justice. The ACC's conduct may be condemned. But if a fair trial can be had, or if it is not possible to say now that a fair trial cannot be had, why would the administration of justice be brought into disrepute? In the circumstances of these appeals, the administration of justice would not be brought into disrepute if the prosecutions were permitted to proceed. First, in relation to the appellants, the direct use immunity prescribed by the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") is preserved. The transcripts of the ACC examinations are not sought to be tendered at the trial. Insofar as the investigators from the Australian Federal Police ("the AFP") have knowledge of what was said at the ACC examinations, each investigator has provided an undertaking to the Supreme Court of Victoria that: they have not communicated the contents of, or what took place at or in relation to, the ACC examinations to the replacement prosecutors; they will use their best endeavours not to communicate, directly or indirectly, the contents of, or what took place at or in relation to, the ACC examinations to the replacement prosecutors or any other person who to their knowledge has conduct of the trials of the appellants ("a relevant communication"); and should they become aware of a relevant communication, they will advise the Supreme Court. Second, the fact that some of the evidence sought to be tendered at the trial may have been obtained derivatively from the ACC examinations (and has thereby itself been illegally obtained) does not automatically render that evidence inadmissible, let alone result in the impossibility of a fair trial so as to justify a stay. Indeed, it was plausible that the appellants could have been examined lawfully under the ACC Act. And if that had occurred, any derivative evidence lawfully obtained could have been subsequently sought to be tendered at trial. Third, the courts, not the ACC or the AFP, are the administrators of justice. As the administrators of justice, the courts can and do control their own processes if they consider that those processes are being misused or that, for some identifiable reason, an accused is not receiving, or will not receive, a fair trial. The courts can and do act of their own motion and in response to applications by the Crown and the defence. The courts can and do act at any point in the criminal process. And, as just explained, the steps that the courts can and do take are not closed and need not be as drastic as ending proceedings before they begin. Fourth, if a specific issue did arise during the course of the trial, the appellants could make a further application for the Supreme Court to exercise its powers to protect their right to a fair trial. If such an application were made, it would be for the trial judge to consider whether, in the circumstances then presented, it was necessary for the Court to exercise one or more of its various powers to protect the appellants' right to a not unfair trial - including granting a stay, "tempering the rules and practices to accommodate the case concerned" or, to the extent that the issue was capable of being addressed by directions to the jury, making appropriate directions. In the resolution of these appeals, it is appropriate to address the following considerations. Each has several dimensions. All are interrelated: the ACC Act (as it stood at the relevant time); the nature and extent of the unlawful conduct by the ACC before, during and after the ACC examinations of the appellants; the illegally obtained evidence; the fairness of any future trial (including the mechanisms available to a trial judge to ensure the appellants receive a fair trial); and the effect on the reputation of the administration of justice if the prosecutions were permitted to proceed. The ACC Act By its compulsory examination powers, the ACC Act modified a person's right to silence in specific and limited circumstances. That in itself is not unusual. As Gageler and Keane JJ said in Lee v New South Wales Crime Commission ("Lee (No 1)"), there is "no free-standing or general right of a person charged with a criminal offence to remain silent". Under the ACC Act, for a compulsory examination to be validly conducted, two things were necessary: that there be, relevantly, a special ACC investigation and that the examination be conducted "for the purposes of" that special ACC investigation. For a special ACC investigation to come into existence, the Board of the ACC had to "authorise, in writing, the ACC to … investigate matters relating to federally relevant criminal activity" and "determine, in writing, [that] … such an investigation [was] a special investigation" (emphasis added). "Federally relevant criminal activity" was defined to include "a relevant criminal activity[], where the relevant crime [was] an offence against a law of the Commonwealth" and extended to "any circumstances implying, or any allegations, that a relevant crime may have been, may be being, or may in future be, committed against a law of the Commonwealth" (emphasis added). A person need not have been charged in order for activities related to a crime to fall within the ACC's functions and powers. Before determining that an investigation was a special investigation, the Board had to "consider whether ordinary police methods of investigation … [were] likely to be effective". The Board was not required to conclude that ordinary police methods of investigation would definitely be ineffective. Nor was it necessary for ordinary police methods to have already been tried and been proven to be unsuccessful. Rather, the likely effectiveness of ordinary police methods was a matter the Board was required to simply "consider". If those specific and limited circumstances identified in the ACC Act existed and the ACC exercised its powers lawfully, then the ACC Act permitted a person to be summonsed to attend for compulsory examination. The ACC Act provided that examinations conducted under the ACC Act would be conducted in private, subject to exceptions for legal representatives and directions made by the examiner permitting other persons to be present. In addition to directions an examiner might make as to the persons who may be present during an ACC examination (and therefore the persons who may directly hear evidence given by examinees), there were restrictions under the ACC Act on the use of information obtained during an examination: first, a direct use immunity which prevented answers given (or documents produced) in an examination from being admissible in evidence against the examinee in, relevantly, criminal proceedings, if the examinee claimed that the answer (or document) might tend to incriminate them; and, second, obligations on the examiner to consider, and make where required, orders limiting or preventing the disclosure of evidence obtained during the course of an examination. Consistent with ACC policy and standard operating procedures, if a person was "to be charged with a criminal offence, or there [was] considered to be sufficient evidence to ground the laying of a criminal charge", the ACC was unlikely to examine that person or, at the very least, would ensure that any person involved in the investigation or prosecution of the person was not present during the examination and was precluded from having access to the evidence of the person. Pursuant to s 12(1) of the ACC Act, where the ACC, in carrying out an ACC operation or investigation, obtained evidence of an offence against a law of the Commonwealth and that evidence would be admissible in a prosecution for the offence, the Chief Executive Officer of the ACC was obliged to assemble the evidence and give that evidence to the relevant law enforcement agency or prosecuting authority. The obligation in s 12 sat alongside another of the ACC's express statutory obligations: namely, that when performing its functions under the ACC Act, the ACC "shall, so far as is practicable, work in co‑operation with law enforcement agencies". With respect to ACC examinations, those general obligations as to information sharing and co-operation were subject to override by an examiner who, under s 25A(9), was required to give a direction that evidence given before the examiner "must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies" if the failure to make such a direction "might … prejudice the fair trial of a person who has been, or may be, charged" (emphasis added). By its express terms, the ACC Act (including s 25A(9)) recognised that a person could be summonsed to attend an examination and provide sworn evidence before having been charged. Not only was an examinee not entitled to refuse to answer questions on the ground that the answers were likely to incriminate them but, at the very least, consistent with the objects, functions and powers of the ACC, the ACC was obliged to consider disclosing the substance of the information provided by an examinee to law enforcement agencies and prosecuting authorities. Further, there is no derivative use immunity. If a compulsory examination were conducted lawfully, any subsequent disclosures by the ACC, provided that the disclosures did not contravene a direction under s 25A(9), could have been made available to law enforcement agencies to assist with, for example, narrowing document searches, preparing for interviews with other witnesses and preparing a brief of evidence. And that derivative evidence would also be able to be adduced as evidence in a subsequent trial. The disclosures by the ACC were intended not only to assist law enforcement agencies and their investigations but, ultimately, to provide evidence in the prosecution of crimes. Put another way, the ACC Act made disclosure lawful even where direct use immunity had been claimed, provided that the disclosure did not contravene any non-publication direction made by an examiner under s 25A(9). So, for example, after a person had been lawfully summonsed and examined under the ACC Act, the ACC could have disclosed the existence and contents of particular documents to a law enforcement agency without disclosing how the documents were identified or the source of those documents. That is, the ACC could have advised the relevant law enforcement agency that certain documents disclosed potential criminal conduct but not revealed the name of the person examined or even that there was an examination. And that disclosure could have been made even where a person, not the examinee, had been charged. As is apparent, given the breadth of the ACC's powers and the consequences of the exercise of those powers, the ACC and its staff were obliged to act according to law, as well as intelligently and in a structured manner so that their disclosures to law enforcement agencies or prosecuting authorities did not prejudice the fair trial of a person who had been, or may be, charged. And the ACC and its staff were obliged to act in that manner at all times before, during and after any ACC examination. At first blush, these provisions appear to be at odds: on the one hand, the ACC Act provided for a direct use immunity as well as the override against disclosure of information if disclosure might have prejudiced a fair trial but then, on the other hand, the ACC was under an obligation to hand over information to law enforcement agencies and prosecuting authorities, and derivative use of that information was not prohibited by the ACC Act. The tension between those provisions arose because the ACC Act sought to balance the ACC's coercive examination powers, and the ACC's goal of assisting with the investigation of crime, with the right of an accused to a fair trial. Nature and extent of the ACC's unlawful conduct in relation to the appellants Aspects of the conduct of the ACC before, during and after each appellant's compulsory examination by the ACC were not lawful. The unlawful conduct of the ACC was deliberate and comprised unlawful acts of omission and commission. But the ACC and its staff did not consider what they were doing was unlawful; they simply failed to turn their minds to the specific requirements of the ACC Act and failed to consider, let alone keep at the forefront of their minds, that their actions might prejudice the fair trial of a person who may be charged with an offence. The illegally obtained evidence As a result of the unlawful conduct of the ACC, the examinations of the appellants, and the evidence derived from those examinations, were illegally obtained. The illegally obtained evidence included the answers given during the examinations. Not only was that evidence illegally obtained as a result of the examinations themselves being unlawful but some of the answers were directly heard by AFP investigators observing the examinations (without the appellants being aware of, or being given the opportunity to comment on, the investigators' presence), or otherwise read or listened to by persons in receipt of one or more of the transcripts of the appellants' examinations. There is no dispute that the transcripts and any oral account of the examinations by the AFP investigators are inadmissible as evidence in any trial of the appellants. The direct use immunity is, to that extent, preserved. Indeed, in each case, the examiner made orders under s 30(5) preventing all evidence given by the appellants during the examinations from being admissible against them in criminal proceedings. The illegally obtained evidence also included derivative evidence - that is, evidence obtained as a consequence of the AFP investigators' knowledge of the content of the examinations. The evidence was said to have been used in narrowing document searches to prepare the briefs of evidence and in the identification of other witnesses. But, as has been explained, there was no derivative use immunity in the ACC Act. If the ACC had acted lawfully then this information might have been made available in such a form, and to nominated persons within the AFP in such a way, that there was no basis upon which its disclosure "might … prejudice the fair trial of a person who … may be … charged". Fair trial Given the existence of that illegally obtained evidence, will the trial of the appellants be a fair trial or a "not unfair" trial? As was explained in Bunning v Cross, neither the fact that evidence was obtained illegally nor the fact that an investigating authority such as the ACC acted unlawfully means that the evidence is inadmissible. And it would be a step further still to say that obtaining evidence illegally or investigators acting unlawfully means (without more) that a fair trial of the accused is precluded. The ACC Act does not alter that conclusion. The ACC Act made express that which was assumed in Bunning v Cross: the fair trial of a person who may be charged must be at the forefront of consideration before, during and after the obtaining of evidence. Second, unlike the position in Bunning v Cross, under the ACC Act there was nothing to suggest that there could not have been a legal basis to compulsorily examine the appellants and for the ACC to disclose, thereafter, the information obtained - in a particular way and to specific persons - so long as the potential impact on the fair trial of the person was considered and addressed. The position of each appellant also stands in stark contrast to that in Lee v The Queen ("Lee (No 2)"). In the prosecutions of the present appellants, the fact that the ACC acted unlawfully, and the consequences arising from that unlawful conduct, are known before the trial begins. At its heart, the difficulty of this case is that the AFP investigating team will not be replaced for the trial. It is therefore necessary to take what the AFP investigators have - illegally obtained evidence - and ask "does that lead to an unfair trial?" Put in different terms, the fact that evidence was obtained unlawfully presents the question, not the answer. The prosecution team will be replaced for the trial: they have been, and will remain, quarantined from the ACC examinations themselves and what was said in those examinations. Each prosecutor has provided an undertaking to the Supreme Court that: they have not had access to either the recordings or the transcripts of the ACC examinations and the contents of, or what took place at or in relation to, the ACC examinations has not been communicated directly, or indirectly, to them; they will use their best endeavours not to communicate, directly or indirectly, about the contents of, or what took place at or in relation to, the ACC examinations with any person, and not to read any document containing such matters (also defined as "a relevant communication"); and should they become aware of a relevant communication, they will advise the Supreme Court. The AFP investigators are in a different position. The investigating team has not been replaced. However, as noted earlier, the AFP investigators have also provided extensive undertakings to the Supreme Court. Two practical matters or issues were identified in argument - first, the AFP investigators might disclose the illegally obtained evidence (the contents of the examinations) to the replacement prosecutors and, second, if the AFP investigators are called to give evidence at any trial, they may be asked questions which, if answered truthfully and completely, would require disclosure of the fact of the examinations or, so it is said, the contents of the illegally obtained evidence. The first has been addressed. The AFP investigators have provided extensive undertakings to the Supreme Court. There is nothing to suggest that the AFP investigators have not complied, or will not comply, with those undertakings. Of course, if an AFP investigator failed to comply, the prosecution would be obliged to bring that fact to the attention of defence counsel and the Supreme Court, and the trial judge would then have to decide whether the trial of the accused should continue. The second issue - that if the AFP investigators are called to give evidence at any trial, they may be asked questions which, if answered truthfully and completely, would require them to disclose the fact of and the contents of the examinations - has not arisen. The trial has not yet been held. As is often the case in white collar crime, the prosecution case against the appellants is largely documentary. It is not known if the issue just identified will arise and, if it does, how and at what point in the trial. If such an issue did arise then, having ascertained what the issue is and the circumstances in which it has arisen, it would be for the trial judge to consider how to address the issue - including granting a stay, tempering the rules and practices to accommodate the case concerned, or making appropriate directions to the jury. For example, an unreliability warning under s 32 of the Jury Directions Act 2015 (Vic) may be made if a party in a jury trial requests such a warning and the evidence in question is "of a kind that may be unreliable", within the meaning of s 31 of that Act. Not only are the categories listed in s 31 not closed, jury directions are just one of the many steps that could be taken by a trial judge to protect an accused's right to a fair trial. It is inappropriate to speculate about whether the need for such a step will arise and, if so, what step or steps will be required. Without the necessary facts and matters, it cannot be concluded that the appellants are presently not going to receive a fair trial. Foresight, like hindsight, is dangerous. Trial judges can and do deal with what is before them. It should be left to the trial judge to deal with any issue if it arises. The disadvantage identified as critical by the plurality is that the appellants were compelled to give on oath, and are now locked into, a version of events from which it is said they will be incapable of credibly departing at trial. But that disadvantage might lawfully have resulted in any event - there was nothing to suggest that the ACC examinations of the appellants could not have been conducted lawfully; that is, the proper procedures under the ACC Act could have been followed, and could have resulted in a lawful examination. If that had occurred, transcripts of the examinations would have been prepared, signed by the examinee and provided by the examinee to their defence counsel. In any event, any disadvantage said to arise from the appellants being "locked in" has been, or is capable of being, remedied. As noted earlier, the "locked-in" version of events would not be known to the replacement prosecution team. The orders made by the examiner under s 30(5) prevent the transcripts and recordings of the examinations from being admissible as evidence in criminal proceedings against the appellants. The undertakings given by the AFP investigators and the replacement prosecution team are aimed at ensuring that the fact and contents of the examinations do not otherwise come into the hands of the replacement prosecution team. The prosecution must prove its case beyond reasonable doubt, and the appellants remain entitled to put the prosecution to its proof. If the ACC's conduct warrants criticisms of the kind and intensity levelled by the plurality, those criticisms would be relevant only if seeking to punish the ACC. Prosecutions bring the administration of justice into disrepute? In the circumstances, it is not open to conclude now that each appellant would not receive a fair trial or that there should be a permanent stay of the prosecution of the charges against each appellant to prevent the court's processes being used in a manner inconsistent with the recognised purposes of the administration of justice. The ACC acted unlawfully. There is illegally obtained evidence. The conduct of the ACC may be condemned. The administration of justice requires the fair trial of persons accused of crime. But if a fair trial can be had, or if it is not possible to say now that a fair trial cannot be had, why would the administration of justice be brought into disrepute if the prosecutions were permitted to proceed? It would not be. Conclusion and orders For the foregoing reasons, the appeals should be dismissed.
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.
Tony Strickland (a pseudonym)
Commonwealth Director of Public Prosecutions
Appeals allowed. Orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 25 May 2017 set aside and, in their place, order that the appeal to that Court be dismissed. Reasons for judgment to be made available in redacted form subject to further orders; full unredacted reasons provided to parties; suppression order until 10:00am on 14 November 2018.