Turnbull v Office of Environment and Heritage

Background

1. The straightforward but extended factual and procedural context of the application is as follows.
2. The applicant was initially sued by the respondent in the civil jurisdiction of the Land and Environment Court (the civil proceedings). Those proceedings were commenced on 19 September 2014, by way of an application to restrain the alleged clearing of certain land, and to seek orders for the remediation of the areas said to have been cleared between 5 January 2013 and 31 July 2014.
3. The allegation was that the applicant had impermissibly cleared 506 hectares of land in north-western New South Wales. It was the applicant's case that, rather than impermissibly clearing 506 hectares, he had cleared no more than 29.4 hectares.
4. According to his own affidavit of 22 January 2015 filed in those proceedings, the applicant accepted that he had engaged in clearing, but no more than the latter area. That acceptance was said to be on legal advice, and because he had relied upon an expert report of Dr Ross Jenkins, in which Dr Jenkins opined that only 29 hectares of native trees and shrubs were cleared on the property in question.
5. Counsel for the applicant in the civil proceedings gave him advice that he should admit breach of s 12 of the Native Vegetation Act 2003 (NSW) (the NVA). The applicant followed that advice, and made admissions to that effect in open court. No application was made at any stage for some prophylactic mechanism with regard to other uses of those admissions - for example, an undertaking from the respondent that anything put forward by the applicant in the civil proceedings not be used in any subsequent criminal proceedings - nor any other measure that might protect the position of the applicant arising from him defending himself in the civil proceedings.
6. In a recent affidavit of the solicitor for the applicant in the civil proceedings, it was said that the admissions were made on the advice of counsel, and that those proceedings were to be defended on at least two different bases; namely, the degree and extent of contravention, and whether trees over particular areas of land could be classified as regrowth for the purposes of the NVA.
7. It was also said that the evidence of the applicant was "required" in the civil proceedings to satisfy the Court that much of the alleged clearing did not, in fact, contravene the relevant provisions of the NVA.
8. On 3 June 2016, Craig J made orders in the Land and Environment Court that the applicant be restrained from further clearing of land at the relevant site, and that the applicant carry out certain remedial works, pursuant to ss 41(5) and 38 of the NVA: see Chief Executive of the Office of Environment and Heritage v Turnbull (No 4) [2016] NSWLEC 66.
9. Following the conclusion of the hearing of the civil proceedings, but before the delivery of that judgment, the respondent initiated a prosecution of the applicant in the criminal jurisdiction of the Land and Environment Court. That was effected by the filing of a summons on 1 March 2016. (The coextensive jurisdictions of that Court are created and governed by the "class 4" and "class 5" provisions of the Land and Environment Court Act 1979 (NSW) (the LECA)).
10. Clearly enough, the plaintiff in the civil proceeding (the respondent) was the same party that subsequently sought to prosecute the applicant for his alleged criminal offences. It was not disputed before us by senior counsel for the applicant that the respondent was entitled to fulfil both roles.
11. The applicant pleaded not guilty to a charge of unlawful clearing of native vegetation contrary to the NVA.
12. It became clear that, in the criminal proceedings, the respondent proposed to rely on the evidence put forward by the applicant in the civil proceedings, to the effect that he had indeed cleared some land, but he disputed, on various bases, "quantum".
13. Thereafter, the applicant moved on a number of notices of motion in the criminal proceedings, seeking various orders. Only one of them need be discussed now, as follows.
14. On 8 October 2019, the applicant filed a notice of motion seeking various orders. One of them relied on various provisions of the Evidence Act 1995 (NSW) to exclude from evidence in the criminal proceedings the evidence proffered by the applicant in the civil proceedings. That proposition was rejected by Pain J: see Chief Executive, Office of Environment and Heritage v Grant Wesley Turnbull (No 3) [2019] NSWLEC 165 at [101]-[115].

The application to the primary judge

1. On 8 October 2019, the applicant filed a notice of motion seeking the following pre-trial orders: 1 a permanent stay of proceedings of the charge that the applicant committed an offence against section 12 of the Native Vegetation Act 2003 (the Act) in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or property Vegetation plan for the period from 1st January 2014 to 1st March 2014 by reason of the circumstance that the period from 1st January 2014 to 1st March 2014 is statute barred in accordance with the provisions of the Native Vegetation Act 2003. 2 a permanent stay of proceedings of the charge that the applicant committed an offence against section 12 of the Native Vegetation Act 2003 (the Act) in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with the Act or property Vegetation plan for the period from 1st January 2014 to 20th August 2014 in that the charge is duplicitous and that any offence of the applicant was not a continuous offence for the purpose of the Native Vegetation Act 2003. 3 That the (or any) admissions previously made or given by the applicant in proceedings in this court in proceedings number 2014/40673 or any court are inadmissible in the trial of the applicant/defendant in these proceedings. 4 Such further, other and or ancillary orders as may be required by or pursuant to this application.
2. The first and second proposed orders, asserting a limitation defence and a defence of duplicity, need not be discussed further. Only proposed order 3 is relevant to the application to this Court under discussion.
3. On 4 August 2020, the application was heard by Duggan J. That application also included a submission by the applicant that the following order should be made: That the Court order a temporary stay of the trial of the defendant to and until such persons who have had access to the evidence given by the defendant in proceedings number 2014/40673 are no longer involved in the prosecution of the defendant …
4. On 28 August 2020, Duggan J dismissed that notice of motion: Chief Executive of the Office of Environment and Heritage v Grant Wesley Turnbull (No 4) [2020] NSWLEC 124 (hereafter, either "Turnbull (No 4)" or "the primary judgment"). Her Honour thereby declined to exclude any of the admissions made by the applicant in the civil proceedings from the pending criminal proceedings. Her Honour also declined to impose a temporary stay on the proceedings until the legal team of the respondent was altered, as sought above.
5. It is from the interlocutory refusal of her Honour to make those orders that the applicant seeks leave to appeal to this Court.

Deeper analysis of proceedings before primary judge

1. In order to understand the applicant's submissions to this Court, it is first necessary to outline the submissions he made to Duggan J that did not find favour.
2. In support of that application, the applicant submitted that a prosecutor must prove the guilt of the accused without his or her assistance; that use in the criminal proceedings by the respondent of the admissions made by the applicant in the civil proceedings would infringe that principle; that consequently, the respondent should be precluded from using the admissions made by him in the civil proceedings; and furthermore that a temporary stay was warranted to facilitate the required quarantining of the legal team of the respondent from any knowledge of those admissions.
3. Counsel for the applicant stated that it was not a necessary element of the accusatorial principle for the "assistance" of the accused to be compelled in the strict sense - it was said to be sufficient if the evidence from the defendant had been elicited by the prosecuting authority.
4. In the alternative it was argued that, if compulsion were a necessary element of the accusatorial principle, then the defendant had been compelled to make the admissions, due to the absence of any "real choice" not to participate in the civil proceedings.
5. In reply at first instance, the applicant argued that Holloway v R [2015] NSWCCA 207, which was relied upon by the respondent, was distinguishable, because in that case it was at the conclusion of civil proceedings that the subject matter of those proceedings was referred to a prosecuting authority, and that authority was different from the opposing party in the civil proceedings. In contrast, here the respondent was both plaintiff and prosecutor: Turnbull (No 4) at [33]. In short, in the primary proceedings the applicant had emphasised the importance of the "doubling up" of the role of the respondent.
6. The judgment of the primary judge may be summarised as follows.
7. Her Honour made reference to the accusatorial principle as enunciated by the High Court in Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [32]-[33] (citations omitted): 32 Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that "no attempt to whittle it down can be entertained" albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice. 33 The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.
8. Her Honour also referred to other seminal cases about the principal; there is no need to recount them here. The passages from those cases repeat, emphasise, and in some ways extrapolate the import of the extract from Lee v The Queen provided above.
9. Following a review of the relevant authorities, her Honour expressed the view that "it is apparent that the assistance of the accused to which the principle applies is assistance that is obtained from the accused by compulsion": at [44] of the primary judgment.
10. Her Honour also noted at [45]: "The accusatorial principle is not so broad that it prohibits all acts of participation by the accused. The right to silence is one that is afforded to the accused but not one that an accused is required to adhere to. Whilst a Prosecutor cannot compel an accused to participate in the investigation of a crime or to testify at the trial, an accused may do both of these things without offending that fundamental principle. Further, whilst the Prosecutor must bear the burden of proving the case to the relevant standard, and it must do so without the benefit of assistance from the accused, where the accused does assist (other than by compulsion), the utilisation by the Prosecutor of the material derived from that assistance does not offend the accusatorial principle."
11. Her Honour then discussed whether the admissions in the civil proceedings could be thought of as being made under compulsion.
12. First, her Honour noted that compulsion could take many forms, the foremost of which was requiring an accused to answer questions that may tend to incriminate him or her, in circumstances whereby the failure to provide such answers can lead to the accused being at jeopardy of further sanction: Turnbull (No 4) at [49].
13. It had been submitted that the relevant compulsion that is required by the accusatorial principle is present where an accused is faced with an "invidious choice". The invidious choice was a reference to the proposition that, where criminal proceedings are pending or likely, and civil proceedings are commenced, an accused should not be faced with the choice as to whether to defend himself or herself in the civil proceedings to the potential detriment of the defence or right to silence in pending criminal proceedings: primary judgment at [50].
14. Her Honour opined that the applicant was not in fact faced with that choice: the civil proceedings had been concluded prior to the criminal proceedings being commenced - with the plain result that it was a matter of chronological fact that the applicant had not been faced with such a choice: [52].
15. Separately, in the context of a discussion of Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 (AFP v Zhao), her Honour determined at [56] that identicality of subject matter between civil and criminal proceedings is necessary but insufficient. It is also necessary to identify prejudice, which the applicant had failed to do.
16. In short: her Honour did not deny the existence of the accusatorial principle, nor its importance. But, because the essential ingredient of true compulsion was found to be missing, and, as a matter of simple chronology, the applicant was not confronted with an invidious choice at the time when he chose to put on evidence in the civil proceedings, it was determined that the applicant should not have the relief he sought.

Written submissions of the applicant in these proceedings

1. The gravamen of the submissions for the applicant in this Court is that the proposed reliance by the respondent in the subsequent criminal proceedings upon the statements made by the applicant in defending the prior civil proceedings in which the respondent had also been the plaintiff constituted a breach of the accusatorial principle. That is because the onus is on the prosecution to prove the guilt of an accused person without his or her assistance.
2. The applicant contended that, had he been aware that a subsequent criminal prosecution would be brought in respect of the land clearing that was the subject of the civil proceedings, he would have sought a stay of those civil proceedings pending determination of the criminal proceedings. It was said that this would have been undertaken by the appellant in order to protect his right to silence in respect of the latter when defending the former. An affidavit of 12 January 2021 of the applicant that had not been placed before the primary judge was sought to be read in this Court to that effect. So was a recent affidavit of the solicitor for the applicant, to the effect that, during the civil proceedings, the applicant had never been advised of the possibility of subsequent criminal proceedings.
3. The applicant accordingly submitted that, at the time of the civil proceedings, the possibility that criminal proceedings might later be brought in respect of the alleged land clearing was not brought to his attention.
4. In response to the finding of the primary judge - that the defendant was not compelled to give the admissions, and that there was no evidence suggesting that the admissions were necessary to defend the civil proceedings - the applicant submitted that the common law rule of admissibility that an admission that was "compelled" is not admissible in criminal proceedings may be regarded as one element of the accusatorial system of justice. It was said that that element is not a comprehensive statement of the scope of that principle.
5. In other words, I understood the submission to be that, although "true compulsion" (in the sense of being required to speak or otherwise incriminate oneself on pain of punishment, including possible imprisonment) was very often a feature of cases that expound the accusatorial principle, it is by no means essential.
6. In support of that proposition, it was said that the accusatorial principle, as applied in AFP v Zhao, similarly applies to the present case. In AFP v Zhao, the plurality of the Court stated (at [35]): "Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial."
7. Relying on AFP v Zhao, and Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97 (CFMEU v ACCC), it was submitted that the principle that emerges is that there is a breach of the accusatorial principle if a defendant who wishes to give evidence in civil proceedings is placed at risk of that evidence being used to his or her prejudice in related criminal proceedings.
8. In other words, the submission was that the primary judge had focused too closely on the question of true compulsion: as AFP v Zhao demonstrates, the principle can lead to a remedy even when an accused person was not, strictly speaking, compelled to give evidence in civil proceedings.

Oral submissions of the applicant

1. At the hearing in this Court, senior counsel conceded that the circumstances in the present case differed from those in AFP v Zhao and CFMEU v ACCC. In those cases, criminal proceedings were pending at the time the civil proceedings were on foot, whereas in the present case they were not. As I have shown, the civil proceedings were concluded before the criminal prosecution commenced.
2. The applicant contended that, even so, the principles emerging from AFP v Zhao and CFMEU v ACCC applied, and capricious questions of chronology could hardly be determinative of the application of this fundamental principle.
3. The applicant accepted that, in the sense that there is absent an element of "actual compulsion" in this case, the factual matrix most closely aligns with that of AFP v Zhao, as opposed to cases in which an accused person has been truly compelled to give self-incriminatory evidence before an investigative body.
4. Separately, the applicant accepted that the decision of this Court in Holloway v R is an application of the general proposition that something said or done in civil proceedings can indeed be used subsequently against the speaker or actor in criminal proceedings.
5. It was said, however, that a critical factor in this case is that the prosecutor bringing the criminal proceedings is one and the same legal person who instituted the civil proceedings. I understood that dual identity of the respondent as being crucial to the distinction drawn by senior counsel between this case and Holloway v R.
6. It was submitted that, having chosen to delay bringing the criminal proceedings until after the applicant defended himself in the civil proceedings, the respondent as prosecutor should not then be permitted to take advantage of the evidence of the applicant in his civil defence, in order to "circumvent" the right to silence. Having said that, it was not suggested that the respondent had acted in bad faith at any stage: Appeal Tcpt, 18 March 2021, pp 5-6(45-5).
7. It was also submitted that the emphasis upon the availability of a "choice" to the applicant - in the sense that there was no true compulsion upon him to defend himself in the civil proceedings - is reminiscent of the error made of the primary judge in AFP v Zhao, in refusing relief in similar circumstances. And yet the Victorian Court of Appeal and the High Court of Australia were content to provide it, by the simple mechanism of adjourning the civil forfeiture proceedings until after the criminal prosecution pertaining to the very same assets had been concluded.

Written submissions of the respondent

1. The respondent submitted that the accusatorial principle was not engaged in the present case, for the following reasons.
2. First, the applicant voluntarily admitted the commission of an offence in open court, with the benefit of competent legal advice, when he sought to defend himself in the civil proceedings, or at least to mitigate his civil wrongdoing.
3. Secondly, the admissions were made without inducement or any other unfairness on the part of the respondent or anyone else.
4. Thirdly, no undertaking was offered or sought that there would be no subsequent prosecution by the respondent. In that circumstance, the accusatorial principle prevents neither the commencement of a prosecution nor the use of the admissions in subsequent criminal proceedings.
5. Fourthly, it was said that it is necessary to demonstrate compulsion for the principle to be engaged. In other words, an essential element of the accusatorial principle is that the defendant had in some way been compelled to participate in the investigation of, or the proving of, the charges against him.
6. Separately, it was said that there is nothing unprincipled about the prosecution adducing incriminating evidence that could be said to be based on "assistance" from the accused. I understood the proposition to be exemplified by the fact that every suspect has a right to silence when sought to be questioned by police (except in very limited circumstances). Having said that, if he or she chooses to provide a version of events to an investigator, other things being equal, that version is admissible against him or her as an accused.
7. It was submitted that the applicant was not faced with an invidious choice between defending his civil proceedings and maintaining a right to silence for the criminal proceedings: the civil enforcement proceedings had been concluded prior to the commencement of the criminal proceedings that are the subject of this appeal. I understood the submission to be that, because the two forms of litigation were not contemporaneous, at the time when the applicant chose to engage in defending the civil proceedings, there was simply no choice to be made, except a highly hypothetical or contingent one.
8. It was also contended that it was not as if the applicant wished to contest the central allegations in the civil enforcement proceedings - instead, he determined that he should admit them, but dispute the extent of his civil wrongdoing. The asserted prejudice arose only because the applicant had no substantive defence to the civil enforcement proceedings. That state of affairs, it was said, is not suggestive of infringement of the accusatorial principle.
9. It was submitted, by way of the reference in Holloway v R at [41] to the judgment of Gleeson CJ in Peters & Heffernan v R (1995) 83 A Crim R 142 at 143, that "right-thinking members of the community would be very surprised if a person who, in sworn evidence at a trial, admits having committed a serious crime, were not later prosecuted for that crime". I understood the point to be that it would be a very odd result if the applicant were able to admit to offending in a way thought to be to his advantage in defence of civil proceedings, without those admissions potentially having adverse consequences in subsequent criminal proceedings.
10. Finally, it was submitted that there are practical problems with seeking a stay until a new prosecutorial team can take over, namely, the admissions of the applicant were made in open court, and so it would not be possible to quarantine the legal team of the respondent to prevent its knowledge of things already said publicly by the applicant.

Oral submissions of the respondent

1. The respondent generally contended that the accusatorial principle was not offended by the use by a prosecutor in criminal proceedings of admissions about the commissions of an offence that were made voluntarily by the accused in civil proceedings.
2. The proposition was reiterated that the accusatorial principle has only ever been found to have been offended by a prosecutor seeking to use those admissions where the admissions were made under compulsion.
3. Moreover, it was contended that it has never been held that the use by a prosecutor of admissions that have already been made by an accused voluntarily would offend against the accusatorial principle. What the applicant is attempting to do in these proceedings, it was said, is to extend the principle in a way unsupported by precedent.
4. The point was made that there are sound policy reasons why Parliament has empowered the respondent to be both plaintiff and prosecutor. After all, the civil proceedings included restraining orders designed to protect an assertedly endangered ecological area, and the requirement of prompt remediation of any damage done. The rhetorical question was asked as to how the solution arrived at in AFP v Zhao of postponement of the civil proceedings could have had any application here, even if it had been sought, bearing in mind their obvious urgency.
5. Finally, it was submitted simply that Duggan J was correct to state that the accusatorial principle would have been breached only if the admissions were obtained under compulsion.

The applicant in oral reply

1. In reply, senior counsel said that, if the criminal proceedings had been pending in 2015, the risk that his evidence in the civil proceedings might be used to prejudice him in the criminal proceedings would have required the civil proceedings to be stayed until the completion of the criminal proceedings, in accordance with the remedy arrived at in AFP v Zhao.
2. It was said that the respondent had sought to distinguish AFP v Zhao and the present case based on the idea of an "invidious choice" between defending the criminal proceedings and responding to a civil claim. Here, however, the applicant was not given any choice at all - invidious or otherwise - because of an accident of chronology. The fact that the applicant wished to give evidence in the civil proceedings for some perceived forensic benefit does not provide a basis, it was said, for distinguishing AFP v Zhao as an application of principle.
3. It was submitted that the contention of the respondent that the present case is simply an example of the principal in Holloway v R should be rejected: Holloway v R involved an attempt to permanently stay a trial, much more than what is sought here. More importantly, the civil proceedings had been brought by a plaintiff who was not the prosecutor in the subsequent criminal proceedings.
4. Any submission of the respondent that any disadvantage to be suffered by the applicant was a result of a mistake by himself and his lawyers should be rejected. The accusatorial principle requires that the respondent should not be permitted to proceed in that way. In any event, it is not apparent what "mistake" was made by anyone in the circumstances as they pertained at the relevant time.
5. Although the respondent pointed to the practical difficulties arising from the admissions being available in the public domain, the respondent declined to provide an alternative remedy - notably, in the context of the primary judge having recorded that the respondent refused to give an undertaking not to tender the evidence of the admissions against the applicant in the criminal proceedings.
6. It was said that the respondent had observed that it was noteworthy that there was no statutory provision in the Act precluding criminal proceedings after civil proceedings. The significance of that was not, however, explained at the hearing by the respondent.
7. The applicant advanced the proposition that there are multiple ways to balance the public interest in a case where the principle arises. Thus, an alternative remedy in AFP v Zhao would have been not to stay the civil proceedings, but to prevent use of anything said by the defendant in the civil proceedings in subsequent criminal proceedings.
8. In that context, counsel explained that the necessary determination for this Court is not a stark binary choice - in other words, it is not a question of whether the principle should be protected when one seeks to be able to defend a civil claim against oneself, but rather how best to protect the accusatorial principle, acknowledging that there are sometimes competing public interests.

Determination

1. I would not grant the relief sought to by the applicant, for the following reasons.
2. First, no one can deny the importance of the accusatorial principle in our system of criminal justice. Nevertheless, its practical application has finite limits, it is not absolute, and it must sometimes yield to other principles. Furthermore, the right to silence that is its keystone can be limited or abolished by legislation of sufficient clarity. Finally on this aspect, the High Court of Australia has recently set out a rough boundary in the latter context based upon whether inquisitorial steps are being taken against a person before or after he or she is charged with a criminal offence: see R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8.
3. Secondly, it is true that the decision of the High Court in AFP v Zhao demonstrates that "true compulsion" is not a necessary ingredient for the application of the principle. That is because Mr Zhao was not compelled - on pain of penal sanction - to defend the pending civil forfeiture application in the same way that a person called to give evidence at an investigatory commission is compelled to give truthful self-incriminating evidence. And yet the High Court granted relief in that case, based upon the principle. In other words, I accept the proposition of the applicant that that case expanded the reach of the principle to some degree. It also means that, to the extent that the primary judgment was founded on the necessity to demonstrate true compulsion, I respectfully take a different view.
4. Thirdly, the countervailing aspect of AFP v Zhao is that the relief granted was extremely limited, as follows. With civil and criminal proceedings pending against the one person that shared closely related subject matter, and with that person wishing to defend the civil proceedings without incriminating himself in the criminal proceedings, the solution of the High Court was simply to endorse the order of the Victorian Court of Appeal that the civil proceedings must proceed after the criminal trial. That was an important step, taken for important reasons, but it was really a matter of curial timetabling. And it was applied in circumstances in which the plaintiff in the civil proceedings had a restraining order over the subject matter of the litigation, with the result that its interests could not be endangered substantially by any delay in the civil proceedings.
5. In stark contrast, here the solution sought is very radical: after the conclusion of civil proceedings, in which the applicant admitted wrongdoing as part of his defence, he now wishes to contend that everything he said in that litigation should be unavailable for use in later criminal proceedings. That is a very large extension of the limited practical solution found in AFP v Zhao. In my opinion, it would constitute an unwarranted expansion of the approach taken by the High Court in that case.
6. Fourthly, it is to be recalled that the applicant has already sought to have what he had said in the civil proceedings excluded from the criminal proceedings by way of various provisions of the Evidence Act, including s 90. In other words, Parliament has already created a mechanism whereby admissions made in circumstances that are found to be unfair to their maker can be excluded by a presiding judge in criminal proceedings.
7. In other words, it is not as if there is no mechanism whereby the general issue that has arisen here may be the subject of discretionary solution or amelioration if a judge in criminal proceedings sees fit. That is another factor in my caution in effecting a radical extension of AFP v Zhao.
8. Fifthly, the applicant placed significant emphasis on the fact that the plaintiff in the civil proceedings and the prosecutor in the criminal proceedings are one and the same body. But in my opinion that double role is a position consciously adopted by Parliament in the context of alleged environmental wrongdoing that can be both a civil wrong and a criminal offence. To place weight on that choice of Parliament, with the result for which the applicant contends, could be to undermine the undoubted intention of Parliament to permit one body to play two different roles with regard to the same general subject matter.
9. Sixthly, I do not believe that it is necessary to go into the details of the facts, broadly similar but not identical to those in AFP v Zhao, that arose in CFMEU v ACCC. It suffices to say that the Full Court of the Federal Court of Australia did not extend the approach taken in AFP v Zhao to that different set of facts. And it is very significant to my thinking that the applicant could point to no other decision throughout Australia whereby the approach in AFP v Zhao had been extended to a new set of facts. That suggests to me that this Court should be cautious as well.
10. Seventhly, with the benefit of hindsight, it is possible, with respect, that a different approach could perhaps have been taken to the civil litigation by the applicant and his legal team. But hindsight is given to neither litigant nor lawyer at the time when difficult litigious choices are being made, and in that sense is a fruitless reflection. And in any event, the possibility of other choices having been adopted by its opponent is no reason for the prosecutor to be disadvantaged by the exclusion of probative evidence from its case in the criminal proceedings.
11. Finally, it is important to my view that the applicant could point to no lack of good faith on the part of the prosecutor in the way the litigation as a whole unfolded; in particular, in commencing the civil proceedings first: for a contrasting case in which radical relief was granted in circumstances of established profound unlawfulness, see Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53. Nor, in contrast to other cases dealing with the accusatorial principle, is there any suggestion here of incompetent non-compliance with orders or statute on its part: see Lee v The Queen.
12. In summary: I accept the importance of the principle. I also accept that the applicant has suffered a disadvantage from being the subject of two sets of litigation arising generally from a single set of facts. I further accept that the criminal justice system has crafted solutions to that kind of disadvantage, especially in circumstances in which the accusatorial nature of a criminal trial is in danger of being undermined by a compulsory process that gives rise to self-incrimination. But I do not accept that the measures sought by senior counsel for the applicant should be adopted here.

Proposed orders

1. Because of the importance of the issue of the practical application of the accusatorial principle in various circumstances, and the fact that the matter was fully argued, I would grant leave to appeal out of time, and leave to appeal. For the preceding reasons, however, I would dismiss the appeal.
2. I propose the following orders: 1. Grant leave to appeal out of time. 2. Grant leave to appeal. 3. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2021