Court of Appeal (WA)|2016-06-03|Before: Ms J, Mr J, Lure P, Buss JA, Mitchell J

ZANON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 91 (3 June 2016)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ZANON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 91

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Scope of prosecution case in opening - Adequacy of accomplice and identification directions - Relationship between accomplice direction and identification direction

Criminal law - Appeal against conviction - Compulsory examination under Criminal Property Confiscation Act 2000 (WA) (CPCA) - Proper construction of CPCA - Whether police authorised to provide content of compulsory examination to DPP - Whether DPP permitted to make derivative use of content of compulsory examination - Onus principle - Companion principle - Legality principle

Criminal Law - Leave to appeal against sentence - Drug offences - Manifest excess - Parity - Totality - Turns on own facts

Leave to appeal against sentences refused, appeals taken to have been dismissed

A v Corruption and Crime Commissioner [2013] WASCA 288

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438

Basilio v The State of Western Australia [2010] WASCA 202

Carney v The State of Western Australia [2010] WASCA 90

Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 89 ALJR 622

Dunn v The Queen [2015] WASCA 126

Fragomeni v The State of Western Australia [2011] WASCA 67

Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208

Halmi v The State of Western Australia [2013] WASCA 229

Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282

Hughes v The State of Western Australia [2015] WASCA 164

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408

Katsuno v The Queen [1999] HCA 50; (1999) 199 CLR 40

Kitis v The State of Western Australia [2013] WASCA 34

Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196

Mikulic v The State of Western Australia [ 2011] WASCA 127

Milenkovski v The State of Western Australia [2014] WASCA 48

Neumann v The State of Western Australia [2013] WASCA 70

Ozan v The State of Western Australia [2013] WASCA 27

Penney v The State of Western Australia [2011] WASCA 71

Petersen v The State of Western Australia [2016] WASCA 66

R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8; (2016) 90 ALJR 433

Roffey v The State of Western Australia [2007] WASCA 246

Sathitpittayayudh v The State of Western Australia [2015] WASCA 152

Seeto v The State of Western Australia [2014] WASCA 221

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92

1 McLURE P: The appellants Marc Quaid and Roberto Zanon appeal against their conviction, after a joint trial, of one count of having on 6 March 2013 sold or supplied a prohibited drug, namely 8.75 kg of methylamphetamine, to another contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (MDA) (counts 1 and 4 respectively).

2 Marc Quaid also appeals against his conviction in the same trial of having on 21 March 2013 sold or supplied a prohibited drug, namely 4 kg of methylamphetamine, to another contrary to s 6(1)(c) of the MDA (count 2).

3 On 14 November 2014 Goetze DCJ sentenced Mr Quaid and Mr Zanon. Mr Zanon was sentenced to 14 years imprisonment for the offence the subject of count 4. Mr Quaid received a total effective sentence of 23 years imprisonment for the offences the subject of counts 1 and 2. Both were declared to be a drug trafficker under s 32A(1) of the MDA and made eligible for parole. Each appellant has applied for leave to appeal against sentence; those applications have been referred to the hearing of the appeal.

4 In broad terms the State case was that about six months prior to the arrest of the appellants, witness x, a drug dealer, began to receive and act upon instructions from a person whom he knew as 'World 150' for the collection, storage and delivery of prohibited drugs. It was alleged that World 150 was Mr Quaid. World 150 used a driver to deliver the drugs to witness x on 6 March 2013. That driver was known to witness x as 'Adrian Zanich'. It was alleged that Mr Zanon was Adrian Zanich.

5 Witness x gave evidence for the State of, among other things, his conversations with Mr Zanich and a general description of him. There was evidence at trial that in a photoboard process on 5 April 2013 witness x identified Mr Zanon as the person he knew as Adrian Zanich, the driver who delivered the drugs to him on 6 March 2013.

6 The State case against Mr Quaid also relied on the evidence of witness x. Witness x gave evidence of his dealings with World 150, which included email exchanges, and provided a general description of World 150. According to witness x, World 150 gave him various instructions in relation to drugs which he collected, stored and delivered at various times. Witness x said World 150 drove a blue BMW. In a photoboard identification process on 5 April 2013 witness x selected Mr Quaid as World 150 on 'a 50:50 basis'. Mr Quaid's fingerprint was found on the box containing the drugs the subject of count 2, which witness x carried into his factory premises in Malaga on 22 March 2013.

7 Witness x identified the person with the pseudonym 'Gold' (who was said to have an ownership stake in the drugs the subject of counts 1 and 4) as Shaun Eaton.

8 The only live issue in Mr Zanon's trial was whether Mr Zanon was the person witness x knew as Adrian Zanich, being the driver who delivered the drugs to witness x on 6 March 2013. The only live issue in Mr Quaid's trial was whether Mr Quaid was the person witness x knew as World 150, being the person who instructed Mr Zanon to deliver the drugs to witness x on 6 March 2013 and who delivered the drugs to witness x on 21 March 2013.

9 Neither appellant gave evidence at trial. Mr Quaid denied that he was the person witness x knew as World 150. His defence case involved an attack on the honesty and reliability of witness x's evidence and his identification of Mr Quaid; a claim that Mr Quaid had been deliberately set up; and an attack on the adequacy of the police investigation.

10 Mr Zanon denied that he was the person known to witness x as Adrian Zanich. His defence case involved an attack on the honesty and reliability of witness x's evidence and his identification of Mr Zanon and, to a lesser extent, on the adequacy of the police investigation.

11 The evidence at trial established that prior to his arrest on 22 March 2013, witness x had been under police surveillance as a result of confidential intelligence in the possession of police. That was known by the appellants and their trial counsel prior to trial (ts 742 - 747).

12 Mr Zanon and Mr Quaid rely on six grounds of appeal in their conviction appeals, five of which overlap. I will commence with Mr Zanon's appeal against conviction. Leave to appeal has been granted on grounds 1 and 2. The application for leave on grounds 3 - 6 has been referred to the hearing of the appeal.

13 Mr Zanon contends there has been a miscarriage of justice as a result of the prosecution opening, particularised as follows:

The prosecution alleged in opening that police had made inquiries in respect to statements made to them by [witness x] which led to the appellant as Adrian Zanich, and a photoboard identification by [witness x] confirmed that conclusion.

The man [witness x] collected the drugs from was someone he believed was named Adrian Zanich. Police couldn't find any record of an Adrian Zanich but the things that [witness x] knew about him led the police to the accused Roberto Zanon. [Witness x's] subsequent identification of him on a photo board confirmed that the driver he knew as Adrian Zanich was in fact the accused Roberto Zanon (ts 217 - 218). (emphasis added)

15 Just before this passage the prosecutor also said that the investigation of information provided by witness x had led police to Mr Quaid as World 150 (ts 217). Further, the prosecutor referred to the information provided by witness x to police as being 'the things that the police had to work with when looking to identify who World 150 was' (ts 222), and by extension, who Adrian Zanich was.

16 Mr Zanon claims the prosecution opening impermissibly bolstered witness x's evidence of identification by inviting the impermissible and prejudicial reasoning process that, based on their inquiries, the police formed the opinion that Mr Zanon was Adrian Zanich and that conclusion was confirmed by witness x when he identified him in the later identification process. The appellant submitted the police opinion was irrelevant and inadmissible, relying on Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650. It was also contended that the opening suggested that Mr Zanon's identity was (and therefore could be) established independently of witness x's identification.

17 The passages relied on do not in terms state that police had formed the opinion that Mr Zanon was Adrian Zanich and that this opinion was later confirmed by witness x in the photoboard process. When the context is widened to include the opening as a whole, there is no arguable foundation for Mr Zanon's claims.

18 Witness x did not know the name or address of the persons he knew as Adrian Zanich and World 150 but provided police with general identification information. In addition to giving a description of the men, he informed police of the areas in which he believed they lived, the colour and make of cars they had driven and other personal information. In relation to Adrian Zanich, witness x said he had recently turned 50, had celebrated with a 50th birthday party and initially had driven a silver Mercedes.

19 The opening foreshadowed the evidence that would be led as to the inquiries and investigations made by police, based on the information supplied to them by witness x, and the results of those inquiries and investigations. Acting on what witness x had told them, police obtained additional information which led them to identify Mr Quaid and Mr Zanon as persons of interest for the purpose of placing their images on (separate) photoboards. After the identification process was complete and witness x had positively identified Mr Zanon as the man he knew as Adrian Zanich, police continued with their investigations, including the execution of search warrants on the residences of both men. Mr Zanon was not arrested until 17 April 2013, some 12 days after the photoboard identification and a week after Mr Quaid was arrested.

20 Witness x's identification of Mr Zanon in the photoboard process was a central plank of the State case. Evidence of the accuracy of aspects of the general identification information (of which witness x gave evidence at trial) was relied on by the State in opening to buttress the photoboard identification evidence, not the other way around, as claimed by Mr Zanon. It was no part of the State case in opening (or at trial) that, before or after the identification process, police had formed an opinion that Mr Quaid was World 150 and Mr Zanon was Adrian Zanich.

21 The fact that experienced defence counsel did not at any stage during the trial raise an objection in the terms advanced in ground 1 confirms my assessment of the absence of a foundation for the claim. Ground 1 should be dismissed.

22 Mr Zanon contends there has been a miscarriage of justice as a result of the prosecution adducing evidence from Detective Green detailing the inquiries made by him in respect of information provided by witness x and that those inquiries led him to Mr Zanon. Ground 2 is related to ground 1.

23 It is submitted that: (1) evidence of the inquiries made by police based on the information received from witness x and that those inquiries led police to Mr Quaid and Mr Zanon was irrelevant; (2) the irrelevant evidence impermissibly bolstered witness x's identification evidence by inviting a reasoning process that the identity of Mr Zanon as Adrian Zanich was determined by police prior to, and independently of, the identification process and that witness x, in that identification process, confirmed what was already known by police; (3) the identification of Mr Eaton in the photoboard process was irrelevant and supported a reasoning process that the identification procedures were undertaken to confirm that which was already known by police; (4) the manner in which the evidence was led in relation to Mr Quaid adopted the same impermissible reasoning process which prejudiced Mr Zanon because his association with Mr Quaid was a relevant factor in Mr Zanon being a person of interest and placed on the photoboard. These objections were taken for the first time in this appeal.

24 I will start with the relevant legal principles. To be admissible, evidence must be relevant. Evidence is relevant if it would rationally affect, directly or indirectly, the assessment of the existence of a fact in issue in the proceedings. As there was no objection to the admission of the evidence in question, and thus no ruling by the trial judge, the appellant must demonstrate a miscarriage of justice: R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11], [42]; Carney v The State of Western Australia [2010] WASCA 90 [40].

25 In the absence of a claim of incompetent representation, it is difficult to establish that inadmissible evidence adduced without objection gives rise to a miscarriage of justice. So much follows from the adversarial nature of the criminal trial. As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted; it is for the parties, by their counsel, to decide how and on what bases the proceedings would be fought: Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208 [77]; R v Birks (1990) 19 NSWLR 677, 683. An objectively rational forensic decision not to object to the admission of evidence will not ordinarily give rise to a miscarriage of justice: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] - [77].

26 Detective Richard Green was the police officer in charge of the investigation. He was involved in the surveillance of witness x on 22 March 2013 and the video-recorded search of his factory premises in Malaga on the same day. Detective Green gave evidence at trial of the police inquiries and investigations leading up to and informing the compilation of the photoboards in evidence at trial. His unchallenged evidence was as follows. A forensic imaging unit (the Unit) is responsible for the compilation of photoboards used by police. The investigating officer supplies the Unit with the name and date of birth of the person he or she wants included in the photoboard, referred to as a 'person of interest'. Initially, Detective Green asked for two photoboards to be prepared, one with a photograph of Shaun Eaton, the person named by witness x as having an interest in the drugs the subject of counts 1 and 4. The second person of interest was a man with the initials 'BMF'.

27 As to the Eaton identification evidence, to which objection is now taken, Detective Green was asked:

Now, Shaun Kelvin Eaton, why is it that you wanted him placed on a board to be shown to [witness x]?---[Witness x] on the day of his arrest indicated to me that the person who was utilising the pseudonym Gold was Shaun Eaton.

All right. And so you had his image placed on a photoboard and what was the purpose in showing that to [witness x]?---Well, just to confirm identities more than anything else. Although he was saying he knows this person as Shaun Kelvin Eaton or, sorry, Shaun Eaton I should say, obviously this was the only way of confirming that identity (ts 668).

28 Detective Green's evidence relating to the person of interest, BMF, was as follows. On 22 March 2013 witness x had indicated that World 150 had children at a school at St Marys in Mount Lawley and drove a light blue BMW X5 (ts 669). Detective Green tasked staff to attend at St Pauls school in Mount Lawley and the school indicated that BMF was linked to a light blue BMW (ts 672).

29 On 4 April 2013 witness x inspected the photoboards. In respect of the photoboard containing an image of Mr Eaton (exhibit 4B), witness x selected image no 12, being Mr Eaton. In respect of the photoboard containing the image of BMF (exhibit 5B), witness x did not select any image.

30 After the identification process on 4 April 2013, Detective Green obtained a handwritten statement from witness x, as a result of which he attended at the Sacred Heart Primary School on Mary Street, Highgate and spoke with the school principal (ts 672). The principal provided him with the name of Marc Quaid and the names and dates of birth of Mr Quaid's two sons who attended the school. The latter information linked with the content of emails passing between witness x and World 150.

31 Mr Quaid became a person of interest to police. Detective Green also conducted inquiries into persons identified as knowing Mr Quaid and during that process identified a link with Mr Zanon (ts 674). Based on the information supplied by witness x and by doing research into Mr Quaid, Detective Green made a decision to put Mr Zanon as a person of interest on a photoboard (ts 675).

32 Photoboards containing an image of Mr Zanon (exhibit 8B) and Mr Quaid (exhibit 7B) were shown to witness x on 5 April 2013. Witness x identified Mr Zanon (image 12) as the person he knew as Adrian Zanich. Witness x said there was a 50:50 chance of image number 8 (Mr Quaid) being World 150. In evidence at trial witness x said the reason he said '50:50' was that he had not previously seen Mr Quaid with facial hair.

33 There is no foundation for the claim that the evidence under challenge invited a reasoning process that the identity of Mr Zanon as Adrian Zanich was determined by police prior to, and independently of, the identification process and that witness x, in the identification process, confirmed what was already known by police. The result of their inquiries led police to identify Mr Zanon and Mr Quaid as persons of interest for inclusion in the photoboard identification process. Detective Green's evidence as to his purpose in showing witness x the photoboard with the image of Mr Eaton has no application to either Mr Zanon or Mr Quaid because witness x knew the actual identity of the person known as Gold.

34 No challenge is made to the relevance or admissibility of the out of court statements made by witness x to police. The challenge is confined to the relevance of the evidence (1) of the police investigations of the information supplied by witness x concerning World 150 and Zanich and (2) that the results of those investigations led police to Mr Zanon and Mr Quaid. It is not clear whether the relevance objection is premised on the claim that it invited an impermissible reasoning process. I will assume not.

35 I am satisfied that, in the circumstances of this case, the evidence of the police investigations and the results thereof was relevant. First, there were large gaps between the information provided by witness x to police relating to World 150 and Adrian Zanich on the one hand and the actual identities of the offenders on the other. How, and by whom, those gaps were filled was relevant in circumstances where it would come to the jury's knowledge in cross-examination that police had been acting upon confidential intelligence, the accuracy of which was confirmed by catching witness x red-handed on 22 March 2013. Second, the evidence under challenge in this ground of appeal provided the factual foundation for the defence case of both Mr Zanon and Mr Quaid which was foreshadowed in the defence openings, being that witness x, a dishonest and unreliable accomplice, was the sole source of the information on which police had acted. Mr Quaid's defence went further to assert that he had been set up. That was also to Mr Zanon's forensic advantage because Mr Zanon became a person of interest because of his association with Mr Quaid. Third, the evidence was also relevant to the defence cases that the police investigation was inadequate. In particular, it was put on behalf of Mr Zanon in closing that witness x deliberately implicated Mr Zanon in the offence and that the police were 'absolutely conned' by his lies which contributed to the failure of police to properly investigate the crime (ts 917). Accordingly, the evidence was relevant and thus admissible. In any event, the failure to object was an objectively rational forensic decision.

36 There was also no objection by Mr Zanon's trial counsel to the evidence relating to the photoboard process in which witness x identified Mr Eaton. Having regard to the closing address, I infer that was a forensic decision. In closing, Mr Zanon's counsel compared the time taken for witness x to identify Mr Eaton (five seconds) with the time taken to identify Mr Zanon (20 seconds); noted that both Mr Eaton and Mr Zanon were image number 12 on their photoboards, that the shading on both images numbered 12 made them stand out and that police were unintentionally grooming witness x to look at image number 12 (ts 915 - 916). Having regard to the detail of the defence case, the evidence was relevant.

Ground 3- inadmissible evidence of residence

38 This is a claim that a miscarriage of justice occurred as a result of inadmissible evidence led by the prosecution from witness x in relation to his impression of where Mr Zanich lived. Once again, no objection was taken at trial.

39 The evidence in question and its immediate context is as follows:

Now, in terms of where he was living did you get any idea about that in your dealings with him?---Yeah, when I spoke to him that one time at length when he had his 50th he said that he was at an apartment in Burswood.

All right. Now, in terms of - you say the apartment in Burswood, had you ever had any impression he'd live anywhere else?---Obviously before that I would think further north of the river close to Joondalup, obviously.

Why do you say that?---Well, that's where obviously some of the meeting places were further north of the river towards the start - right at the start of that six months (ts 23 - 24).

40 The objection to the admissibility of the answer to the second question assumes its purpose was to prove where 'Adrian Zanich' lived. That was not the purpose of the evidence. There was independent admissible evidence that Mr Zanich had lived at Joondalup in 2012. The purpose of witness x's evidence was to elicit his belief, and the basis for that belief, as part of the circumstantial case. It was admissible for that purpose. In any event, it is accepted that this ground, in isolation, would not be sufficient to establish a miscarriage of justice. That concession is correctly made. I would refuse leave on ground 3.

Ground 4- relationship between directions

41 It is claimed the trial judge erred in failing to direct the jury as to the relationship between the accomplice direction and the identification direction. The ground is particularised as being that the trial judge erred:

4.1 by failing to direct the jury that in this case in relation to the identification by [witness x], the first question they must decide is whether [witness x] was honestly identifying the appellant, and then if he was, whether that was reliable.

4.2 by failing to relate the accomplice and identification directions to the issue to be determined in this case.

4.3 in the circumstances of this case by giving the accomplice direction after he had given the identification direction (in the terms that he did).

42 Towards the end of his summing up, the trial judge gave an identification warning followed by an accomplice warning. Mr Zanon's submissions are to the following effect. The honesty of witness x was in issue in Mr Zanon's defence, it having been suggested that witness x deliberately (and falsely) identified Mr Zanon as Adrian Zanich. In those circumstances, the jury should have been directed that, in relation to identification, the first question is whether the witness is honest and if the answer is yes, the next question is whether the witness is reliable. An accomplice warning primarily, albeit not exclusively, goes to honesty. An identification warning addresses issues of reliability (honest witnesses can make mistakes). Accordingly, the accomplice warning should have been given before the identification warning. At the very least, repeatedly referring to the issue as one of identification without further elucidation had the capacity to mask that there were two questions - was it a genuine (honest) recognition and if so, was it reliable.

43 I remain to be persuaded that it is appropriate for an appeal court to direct trial judges as to the order in which they give their summing up or the order in which juries must consider the credibility (honesty and reliability) of witnesses. The focus must be on the substance of the summing up rather than its form. Having regard to the summing up as a whole, there is no reasonable prospect of the jury being in any doubt that there were two separate questions for their consideration in the only live issue in the case, that of identification, being the honesty and the reliability of witness x. The trial judge commenced his summing up by directing the jury that they should consider the issue of honesty separately from that of reliability (ts 932 - 933). By the time the trial judge came to give the identification and accomplice warnings, the trial judge had summarised the State and defence cases from which it could not possibly escape attention that, on the subject of identification, witness x's honesty was a key issue and separate from the issue of his reliability. The trial judge summarised Mr Zanon's defence on identification in terms that witness x was an 'unmitigated liar whose evidence should not be accepted' (ts 963). The trial judge also directed the jury that:

You need to be satisfied beyond reasonable doubt as to the honesty, accuracy and the reliability of the identification of the accused. And you will remember I said to you this morning to regard truthfulness as one thing, but reliability as something quite separate. So you need to be sure before you can convict that [witness x's] evidence of recognition is truthful, accurate and reliable. If you are not satisfied about that, then you won't be satisfied beyond reasonable doubt (ts 964).

44 Thus both the honesty and reliability of witness x's identification evidence figured prominently in the directions. After the identification directions, the trial judge gave a strong accomplice warning which must have remained fresh in the minds of the jurors as they retired to consider their verdict. Ground 4 does not have a reasonable prospect of succeeding, thus leave is refused.

45 It is claimed the trial judge erred in his directions relating to the identification evidence by:

5.1 in a recognition case, including directions irrelevant to that concept which had the effect of undermining the warning given;

5.2 failing to direct on matters relevant to the identification/recognition in this case;

5.3 conflating issues relevant to credibility of [witness x] with issues relevant to reliability.

46 The first complaint is that the trial judge's directions included pro forma directions as to the dangers of identification involving persons unknown to a witness. Reliance is placed on the following direction:

The risk of an incorrect identification or recognition has been identified - or when the person has been identified, has only been seen once, and was previously unknown to the person making the identification. So people can have difficulty remembering the physical characteristics of friends and relatives, and this is more so for strangers who they've only seen on a few occasions, perhaps only once, and perhaps in less than ideal circumstances (ts 961).

47 It is said that direction is irrelevant and had the effect of undermining or minimising the identification direction by suggesting there was a greater risk of error with stranger identification than recognition, which suggestion was made express in the following direction:

It's obviously easier to recognise someone who has characteristics with which you are familiar than it is to attempt to identify or remember a perfect stranger, but on [witness x's] evidence World 150 and Adrian Zanich were known to him (ts 963).

48 The evidence was that witness x had met World 150 around eight times and Adrian Zanich around '50, 60 or 70 times' over six months. Witness x did not positively identify Mr Quaid as World 150 in the photoboard process. Accordingly, that process was simply an item of circumstantial evidence in the case against Mr Quaid. The photoboard evidence against Mr Zanon was positive identification of a person previously known to the witness.

49 The trial judge explained the difference between recognition evidence (of a person known to the witness) and identification evidence (of a stranger) (ts 960 - 961). The purpose in doing so was to make the point that the risk of honest but mistaken identification of a person as the offender is likely to vary according to the frequency of exposure of the witness to the person recognised or identified. The directions on identification as distinct from recognition evidence were relevant for that purpose and did not have the effect of improperly undermining the recognition warning.

50 In any event, the trial judge redirected the jury in the following terms:

What I want to impress upon you is that you must consider the warning that I have given you with respect to recognition evidence. It's not something that you just - perhaps it's the way I put it, bear it in mind, is something that you must in fact consider.

It's a matter of law that you need to exercise special caution before you accept and rely on the recognition evidence because of the various things that I have said to you. So that is a direction that you must faithfully follow.

...

And it's because people do make mistakes as I said, it's the experience of courts and judges that these mistakes occur. They don't only occur for when someone sees somebody once, they can occur within families where family members get their own family members - or they wrongly identify family members and that's the experience of the courts (ts 980).

51 The second complaint relates to the following direction:

Now, some things that a judge might ordinarily ask a jury to bear in mind when considering identification and recognition evidence includes these six matters. I'm going to raise them with you. They're not directly relevant in this case, but to make sure that you think about the process that you have to go about.

How long did the witness see the offender? What was the light like? Were there any obstructions or distractions to the witness's observation, including non-visual distractions such as noise? Was the witness under any impairment of alcohol, drugs, mood, stress or temper? Did the witness see the offender clearly face on or only from an angle? What was the distance? Were there any distinguishing features: race, hair, colour, clothes, height? Were there nothing unusual or was there something unusual? How long since the sighting until the photoboard identification.

Now, as I say, a number of these don't have any impact on it, but I mention them to you so that you'll appreciate the nature of your task, to better enable you to consider this issue (ts 963 - 964).

52 In context, the trial judge's statement that the six matters were not 'directly relevant' was to communicate the fact that the evidence of witness x did not descend to the level of detail that permitted answers to all the questions. Having regard to witness x's evidence of the frequency and purpose of his contact with Adrian Zanich, it takes little imagination to understand the trial judge's point. The purpose and effect of the direction as a whole was to highlight the importance of the warning given to the jury about the need for them to exercise caution in considering witness x's evidence. There was no unfairness to Mr Zanon in the direction.

53 The third complaint concerns the trial judge's failure to direct the jury that if they accepted the correctness of witness x's identification of Mr Quaid or Mr Eaton, that did not affect their consideration of the reliability of witness x's identification of Mr Zanon. The trial judge directed the jury that witness x did not positively identify Mr Quaid. Moreover, the circumstances of the identification of Mr Eaton were markedly different from that of Mr Zanon. No such direction was sought on this subject and none was required.

54 The fourth complaint concerns two limitations of a photoboard identification which it is said ought to have been highlighted in the directions. The first limitation is that photoboards cannot show height and the second, the lack of accuracy relating to facial hair growth if any. The trial judge gave very detailed directions about the limitations of photoboard identifications including their vulnerability to suggestion, the risk of displacement, the risk that the witness will select the image that most closely resembles the offender or the person who looks most like the offender and the fact that images on the digiboard are static, two-dimensional, show only the head and (as is patently obvious) do not include any specific identifying or exclusionary factors such as height, build, posture etc of the person being identified (ts 961 - 962). Further, the trial judge reminded the jury of witness x's evidence that Adrian Zanich had facial hair at some time (ts 963). The trial judge's directions were adequate in the circumstances.

55 The final complaint is that the directions on identification conflate the issues of the honesty and reliability of the recognition evidence. There is no conflation or confusion for the reasons given above in relation to ground 4. Ground 5 does not have reasonable prospects of succeeding. Leave to appeal must be refused.

56 It is claimed the trial judge erred in his direction relating to the evidence of the accomplice, particularised in terms that the trial judge erred:

6.1 in the circumstances of this case by directing on matters which were not said to amount to corroboration and in so doing directing that those matters were circumstantial evidence which supports or confirms the identification;

6.2 by using the term 'confirms' in relation to matters that were not corroborative and in describing corroboration.

57 This ground raises three complaints. The first is that the direction should not have included matters which were not capable of amounting to corroboration. The trial judge directed the jury that the only evidence that corroborated witness x's evidence was Mr Quaid's fingerprint on the box containing the drugs the subject of count 2. He then went on to identify specific matters which were not capable of constituting corroboration. The trial judge did so because of the risk, perceived by defence counsel, of the jury relying upon the circumstantial evidence of identification as corroboration (ts 893 - 895; 922 - 930).

58 In the course of the direction the trial judge reminded the jury of items of circumstantial evidence relied on by the prosecution and directed that they were not corroboration but which, on the prosecution case, confirmed or supported witness x's evidence (ts 967 - 968). The second complaint relates to the possibility of confusion arising from the trial judge's use of the phrase 'corroboration or confirmatory' evidence and the use of the terms 'confirm' and 'support' in connection with the circumstantial evidence case.

59 In response to a request, the trial judge redirected as follows:

Let me make it perfectly clear, the only evidence that is capable of amounting to corroboration is Mr Quaid's fingerprints on the box and the bags. It's the defence case that they were put there as part of this set up and if you were to find there was the set up then that would not be corroboration of the involvement of Mr Quaid in the alleged offending.

Now, the other matters that I referred to when I took you through what is not corroboration, the emails and the identification of matters personal or the statement of matters personal by [witness x] as to cars, lizards, birthdays, birthday parties, living in Joondalup, living in Burswood, silver Mercedes, all that kind of information. That is not corroboration, that is part of the circumstantial case.

You heard from [witness x] his direct evidence about those things; you heard also circumstantial evidence, some of which is supportive of [witness x's] evidence. So you can use that as part of the circumstantial evidence but that does not corroborate [that the appellants were involved in the offences] (ts 981).

But it is part of the circumstantial process by which you look at what [witness x] said, who he was involved with, World 150 and Adrian Zanich. And that on the State case would lead you to find, if you accept it, that World 150 was Mr Quaid and Adrian Zanich was Mr Zanon ...

You need to separate out the fingerprints as being capable of amounting to ... corroboration (ts 981 - 982).

60 The fact that the trial judge directed the jury as to what was not capable of corroboration does not constitute a misdirection. The possibility of confusion about the difference between corroboration and the circumstantial evidence relied on by the prosecution on the issue of identification is remedied in the redirection.

61 The third and final complaint is the absence of a direction that the jury must not reason that if they found Mr Quaid to be guilty that Mr Zanon was also guilty. The trial judge gave the standard separate trials direction at the commencement of his charge to the jury. There is no error by failing to repeat it as part of the accomplice direction. Ground 6 does not have reasonable prospects of success, thus leave is refused.

62 The appellant relies on two grounds of appeal for which leave is required. The first ground claims a breach of the parity principle and the second ground claims, that the sentence is manifestly excessive.

63 The legal principles are not in dispute. Leave is required for each ground of appeal: Criminal Appeals Act 2004 (WA) (CAA), s 27(1). This court must not give leave to appeal unless it is satisfied the ground has a reasonable prospect of succeeding: CAA, s 27(2). This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A breach of the parity principle is an express error. The parity principle requires that like offenders should be treated in a like manner. As with the norm of equal justice, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. A court will refuse to intervene where the difference in sentencing outcomes is justified by differences between co-offenders including the part each has played in the relevant criminal conduct or enterprise: Green v The Queen [2011] HCA 49; (2011) 244 CLR 462. The test remains whether the disparity, or the adequacy of the disparity, gives rise to an objectively justifiable sense of grievance.

64 A claim of manifest excess depends upon the implication of error from the sentence itself. The appellant must show that the sentence is unreasonable or plainly unjust. In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender. Sentences customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors.

65 Mr Quaid was sentenced to a term of 20 years imprisonment on count 1 and 15 years imprisonment on count 2. Having regard to the totality principle, the sentencing judge ordered that the 15-year term commence after Mr Quaid had served 8 years of the sentence on count 1, resulting in a total effective sentence of 23 years immediate imprisonment.

66 Mr Zanon was sentenced to a term of 14 years immediate imprisonment for the offence for which Mr Quaid was sentenced to 20 years imprisonment. Mr Quaid and Mr Zanon were co-offenders in the offending committed on 6 March 2013, being the supply of 8.75 kg of methylamphetamine with a purity range of 69% - 75%. Mr Zanon claims there ought to have been a greater disparity between the sentence imposed on him and the sentence imposed on Mr Quaid.

67 The sentencing judge found the facts to be as follows. Mr Quaid operated a drug dealing business on a very significant scale and reaped significant financial rewards. He was at the top or near the top of the drug industry, sourced large quantities of drugs and provided instructions and directions to those in his distribution network.

68 Mr Quaid's drug dealing business was sophisticated, well directed and orchestrated and conducted in a manner aimed at avoiding detection. Different people were used for different roles; they did not know each other's names; code names were used; all parties used encrypted blackberry phones for the international SIM cards, replaced at frequent intervals; different locations were selected for drug deals.

69 Mr Zanon was one of a number of couriers used by Mr Quaid for the distribution of very significant quantities of prohibited drugs. Mr Zanon performed his role as courier for significant reward albeit substantially less than that reaped by Mr Quaid.

70 Of the 8.75 kg the subject of counts 1 and 4, 4 kg was for delivery to witness x on behalf of Mr Eaton. The balance was for Mr Quaid's own commercial purposes.

71 It is not suggested that the co-offenders' personal circumstances or antecedents played any meaningful part in the consideration of the parity principle. By any measure, the disparity between the 20-year sentence imposed on Mr Quaid and the 14-year sentence imposed upon Mr Zanon is very significant. It sufficiently reflects the differences in their criminal culpability and is incapable of giving rise to an objectively justifiable sense of grievance.

72 When regard is had to the purpose and effect of the totality principle in sentencing for multiple offences, there can be no objectively justifiable sense of grievance when comparison is made between Mr Zanon's sentence of 14 years imprisonment and Mr Quaid's total effective sentence of 23 years imprisonment. I would refuse leave to appeal on ground 1.

73 The claim of manifest excess is without merit. Mr Zanon played an integral role, and worked closely with Mr Quaid, in the latter's high level, sophisticated commercial drug dealing business. The business involved the distribution of very large quantities of high purity prohibited drugs in Western Australia. In the execution of his position as a courier for substantial reward in this sophisticated, illegal commercial enterprise, he committed the offence for which he was sentenced. It involved the supply of a very large quantity of methylamphetamine at very high purities. As noted by the sentencing judge, the maximum purity of methylamphetamine is around 82%. The fact that Mr Zanon performed the role of courier in the course of his participation in Mr Quaid's business establishes his culpability as very high. There are no mitigating factors.

74 It is not suggested that the sentence is broadly inconsistent with the standards of sentencing customarily imposed for the offence. It is not. The claim that the sentence is manifestly excessive does not have a reasonable prospect of succeeding. Leave to appeal should be refused.

75 I would dismiss Mr Zanon's appeal against conviction. As leave is refused on all grounds in the sentence appeal, the sentence appeal is taken to be dismissed.

76 Grounds 2, 3, 4, 5 and 6 in Mr Quaid's conviction appeal (the overlap grounds) are materially in the same terms as grounds 1, 2, 4, 5 and 6, respectively, in Mr Zanon's conviction appeal.

77 The written submissions in support of the overlap grounds are relevantly identical to those in Mr Zanon's conviction appeal. No separate oral submissions were advanced in support of the overlap grounds. Leave to appeal has been granted on grounds 1, 2 and 3 of Mr Quaid's conviction appeal. His application for leave on grounds 4, 5 and 6 was referred to the hearing of the appeal.

78 I would dismiss grounds 2 and 3 for the reasons given in relation to grounds 1 and 2 of Mr Zanon's conviction appeal. I would refuse leave to appeal on grounds 4, 5 and 6 for the reasons given in relation to those grounds in Mr Zanon's conviction appeal. That only leaves ground 1.

79 Ground 1, as amended at the hearing of the appeal (with the amendment in italics), is in the following terms:

A miscarriage of justice was occasioned by virtue of the fact that the prosecutor at the appellant's trial was in possession of and/or used evidence of what the appellant said to police officers after his arrest and having been required to answer their questions pursuant to s 76 of the Criminal Property Confiscation Act 2000 (WA).

80 As a result of the amendment, the parties were permitted to file and serve supplementary written submissions. Relying on Lee v The Queen [2014] HCA 20; (2014) 253 CLR 455 (Lee No 2), Mr Quaid contends that mere possession, or alternatively use, by the prosecutor of information compulsorily obtained from him under the Criminal Property Confiscation Act 2000 (WA) (CPCA) in relation to the offences in issue constituted a fundamental breach of the principle of the common law respecting proof by the prosecution unaided by the accused, and a departure, in a fundamental respect, from what the criminal justice system requires. For reasons that will become clear, the parties did not initially direct their attention to when Mr Quaid was charged with the offences.

81 The relevant facts are as follows. On 8 April 2013 shortly before 6.50 am, police executed a Misuse of Drugs Act 1981 (WA) (MDA) search warrant at Mr Quaid's premises in Northbridge. Mr Quaid and his partner Emilie McHenry were present at the time. Portions of the search were recorded by police on video. An edited version of the video was tendered at trial (exhibit 22) (the search interview). At the commencement of the search, Mr Quaid was arrested and cautioned.

82 Prior to the search commencing, Mr Quaid indicated that there may well be multiple thousands of cash on the premises but that he was not responsible for it. Police located approximately $233,000 in cash in various locations throughout the premises. In relation to the cash that was found, Mr Quaid said that it was their (his and Ms McHenry's) money; there was no differentiation between his cash and her cash; the money came from Ms McHenry's nightclub, the proceeds of Mr Quaid leasing his fishing business and from working money. He denied that the money came from the sale of drugs.

83 Ms McHenry also spoke to police during the course of the search and provided an explanation for the cash. She was initially advised that she was not under arrest. She indicated there was money in the house that she had put away because she was yet to do the banking. She said there was 'a bit' that she had been putting away 'over the last few years' and that it was located in a few different spots. She then said it would be a considerable amount because she does not like banks. After the search had commenced, Ms McHenry was cautioned but not arrested. She said that the various quantities of cash found were from the ATM at the nightclub; the wages she paid to herself from the takings of the nightclub; and joint savings accumulated from the nightclub, other businesses and a rental property.

84 The MDA search concluded at 12.25 pm and Mr Quaid was taken to the offices of the Proceeds of Crime Squad. From 2.15 pm on 8 April 2013, Mr Quaid participated in an interview with Detective Gary Smith and Detective Sergeant (DS) Godfrey Hymer under the provisions of the CPCA (the CPCA interview). No other persons were present during the CPCA interview.

85 At the commencement of the interview Detective Smith informed Mr Quaid that he was suspected of having crime-used or crime-derived property; he was being detained under s 73 of the CPCA; he was obliged to comply with the officers requirements that he answer questions pursuant to s 76 of the CPCA; and the consequences under s 76(2) and s 76(3) of the CPCA. The compulsory examination covered the same topics as the exchanges during the course of the execution of the search warrant. The only specific additional information in the compulsory examination was the name of the person who leased Mr Quaid's boat (Mr Hawk).

86 At 3.04 pm the CPCA interview ceased. Although Mr Quaid was under arrest, he had not been charged with the offences in issue at the time of the CPCA interview (ts 30). Mr Quaid continued to voluntarily answer questions immediately after the CPCA interview ceased (from ts 29 - 41). Further, Detectives Green and Knight interviewed Mr Quaid on 16 April 2013 when Mr Quaid volunteered that he had been set up by a man he identified as Adam Forsyth.

87 The respondent adduced evidence in support of the respondent's answer, being an affidavit of the investigating officer, Detective Green, sworn on 8 December 2015, and an affidavit of Robert Wilson, sworn on 15 February 2016. Mr Wilson is a prosecutor with the Office of the Director of Public Prosecutions for Western Australia (DPP) and managed the prosecution of Mr Quaid until Linda Petrusa SC (as she then was) assumed management of it in around March 2014. There was no challenge to the evidence.

88 On 23 April 2013, Detective Green obtained a disc of the CPCA interview and provided it to the DPP and Mr Quaid's lawyer in order to comply with his disclosure obligations under the Criminal Procedure Act 2004 (WA) (CPA). Detective Green did not watch the interview. The CPCA interview disc was not included in the State brief for prosecution.

89 Mr Wilson deposes to the following. A disc of the CPCA interview was received at the DPP on or about 11 June 2013. On 12 June 2013 the DPP requested a transcription of the disc. Mr Wilson summarised the content of the interview in a memorandum made in September 2013. His purpose in familiarising himself with, and summarising the content of, the interview was three-fold. First, to confirm that the interview (and transcript) ought to be disclosed to the solicitor for Mr Quaid in accordance with the legal requirements for disclosure under the CPA; second, to determine whether there were further evidentiary lines of inquiry which ought to be pursued by police; and third, 'to possibly gain a better understanding of the wider background to the offending which might make for a more informed decision-making by [him] in the management of the matter' [par 18].

90 In relation to further evidentiary lines of inquiry, Mr Wilson sent an email to Detective Green on 1 October 2013 which relevantly stated:

(b) In relation to item 10 below, would Adam FORSYTH - or other person working with Flawless Nightclub ... be able to negative what QUAID said to Det Sgt Harmer (sic) in the interview on 8 April 2013 about how there comes to be so much cash at QUAID's house? For example, a witness may be able to negative that the cash would have come from the nightclub because the takings of the nightclub are not dealt with in that way? ... We need to anticipate and deal with (if we can) QUAID'S explanation for the large amount of cash.

Related to the above, has inquiry been made as to financial records concerning QUAID's leasing of his licence and boat? There may be evidence negativing his suggestions made to Det Sgt Harmer that part of the cash was proceeds of his own aquarium business? (I note that during the interview with Det Sgt Harmer, QUAID referred to a Simon HAWK of Ocean Reef as having leased from him in the last 10 months).

91 The reference to item 10 in the email is a reference to an earlier email to Detective Green on 27 September 2013 and the requisition is as follows:

To negative a possible explanation at trial from QUAID, could Adam FORSYTH be asked to provide a statement in relation to what QUAID has alleged against him (this is of course referred to at page 6 of your own statement and at page 4 of the statement of David KNIGHT)?

92 The nightclub as the source of the large quantities of cash in Mr Quaid's premises was raised in the search interview. Mr Forsyth's role was volunteered to Detectives Green and Knight by Mr Quaid during the 16 April 2013 interview. Further, by email sent on 3 February 2014 to Mr Wilson, Detective Green advised that he had met with Mr Forsyth who, in substance, denied any relevant knowledge and declined to provide a statement.

93 On 25 March 2014 a redacted copy of a running sheet of 50 pages was incorporated into the disclosure brief served upon the solicitor for Mr Quaid. The meeting between Detective Green and Mr Forsyth is referred to in an entry in the running sheet which is in substance the same as that in the email dated 3 February 2014.

94 Ground 1 raises issues of statutory construction of the CPCA. In particular: (1) are police authorised to provide a copy of the CPCA interview to the DPP; and (2) if the DPP is permitted to be in possession of the CPCA interview, for what purpose or purposes. In particular, is the DPP permitted to use the CPCA interview for the purpose of the prosecution of the charges against Mr Quaid the subject to this appeal.

95 The CPCA provides for the confiscation of property acquired as a result of criminal activity. Its purpose is to deter and punish people who commit criminal offences.

96 A police officer may stop and detain a person if there are reasonable grounds for suspecting that the person has confiscable property in his or her possession: s 73(1).

97 The term 'confiscable' in relation to property means, inter alia, crime-used or crime-derived property: s 142(d). Property that is or was used, or is wholly or partly derived or realised, directly or indirectly, from the commission of a confiscation offence is crime-used or crime-derived, whether or not anyone has been charged with or convicted of the offence: s 148(1)(a). A confiscation offence means an offence against the law in force anywhere in Australia that is punishable by imprisonment for 2 years or more: s 141(1).

98 The CPCA applies to, inter alia, crime-used property and crime-derived property whether or not anyone has been charged with, or convicted of, the relevant confiscation offence: s 5(2)(c).

99 When a police officer exercises any of his or her powers under s 73, the officer may, inter alia, require a person to give to the officer any information within the person's knowledge or control that is relevant to determining whether or not property is confiscable: s 76(1)(e). An examinee has no entitlement under the CPCA to a record of the examination.

100 A person who, without lawful excuse, contravenes a requirement of s 76(1) commits an offence: s 76(2). A person contravenes a requirement if the person does not disclose material information, if he is aware it was material, or gives false information that he was aware was false: s 76(3).

101 Section 76(4) provides:

A person is not excused from complying with the requirement on the grounds that complying with it would tend to incriminate the person or render him or her liable to a penalty, but any information given in compliance with the requirement is not admissible in evidence in proceedings against the person for any offence except an offence under subsection (2).

102 The DPP has a central role in the operation of the CPCA. Only the DPP has standing to apply to the court for an unexplained wealth declaration: s 11, a criminal benefits declaration: s 15, a crime-used property substitution declaration: s 21 and a declaration that property has been confiscated: s 30. Further, the DPP or a police officer may apply for the issue of a freezing notice: s 34. However, only the DPP has standing to apply to the court for a freezing order for property: s 41.

103 The fact that criminal proceedings under the CPCA or any other enactment have been instituted and have commenced is not a ground on which the court may stay proceedings under the CPCA: s 104.

104 If a person has been declared a drug trafficker under s 32A(1) of the MDA as a result of being convicted of a confiscation offence, all property that the person owned before or after the declaration is confiscated: s 8.

105 Section 70(1) of the CPCA prohibits a person from making a disclosure to anyone, except as permitted under s 71, about the matters specified in pars (a) - (f) thereof. There is no express prohibition on disclosure of information obtained under s 76(1)(e). Moreover, disclosure can be made to the DPP or a police officer of the matters specified in s 70(1)(a) - (f) without limitation as to purpose: s 71(1)(a).

106 Court proceedings on an application under the CPCA are taken to be civil proceedings for all purposes: s 102(1). Section 102(2) provides:

Except in relation to an offence under this Act -

(a) a rule of construction that is applicable only in relation to the criminal law does not apply in the interpretation of this Act.

107 The disclosure obligations under the CPA are also relevant in the resolution of ground 1. The prosecution's statutory disclosure obligations are contained in s 42, s 45 and s 95 of the CPA. Sections 42 and 45 are in pt 3 div 4 relating to the summary jurisdiction procedure on a charge of an indictable offence. Section 42(5) relevantly provides:

As soon as practicable after a charge is adjourned under section 41(4), the prosecutor must serve the accused with the following -

(a) any confessional material of the accused that is relevant to the charge.

108 In a court of summary jurisdiction the prosecutor is defined to mean the person who commenced the prosecution or a person who in court represents that person: s 3(1). The person will ordinarily be a police officer. The disc of the CPCA interview is within the definition of confessional material in s 35. In this jurisdiction police have both investigatory and prosecutorial functions.

109 Within a prescribed period after an accused is committed for trial, the prosecutor must give the 'relevant authorised officer', inter alia, any confessional material and a certificate under s 45(5) certifying that, inter alia, s 42 has been complied with: s 45(3). Detective Green signed the s 45(5) certificate relating to the prosecution of Mr Quaid. The expression 'relevant authorised officer' in relation to an indictable charge is defined in s 80 to mean the authorised officer who is responsible for the prosecution of the charge in a superior court. Relevant authorised officers include the DPP or a member of the DPP staff authorised in writing as an authorised officer. The relevant authorised officer is required to make an independent assessment of whether the material handed over by the prosecutor constitutes all the material required to be disclosed under s 42 of the CPA: Hughes v The State of Western Australia [2015] WASCA 164 [47] - [51]. The relevant authorised officer must serve on the accused any confessional material that has not already been served on or received by the accused: s 95(6).

110 There is a series of cases in which the High Court has considered the scope and effect of statutory powers to compulsorily examine a person charged with a criminal offence (an accused) and a person suspected of having committed a criminal offence (a suspect). The primary cases are X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 (X7); Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196 (Lee No 1); Lee No 2; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 89 ALJR 622 (CFMEU v Boral); and R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8 (R v IBAC).

111 The issues in those cases have been determined on the basis of statutory construction (rather than constitutional immunity) against a backdrop of statutory intrusion into common law (judge made) rights, immunities, principles and values. Of greatest relevance for present purposes are the common law privilege against self-incrimination; the principle that the onus of proof of a criminal charge rests on the prosecution (the onus principle); and the companion to the onus principle, being that an accused cannot be required to testify to the commission of the offence charged (the companion principle).

112 The primary tool for answering the question of statutory construction is the legality principle, pursuant to which statutes are not to be construed as abrogating important common law rights and immunities in the absence of clear words or necessary implication. In order to understand the scope and effect of the High Court cases, it is necessary to provide their factual context.

113 In X7 the appellant, after having been charged with Commonwealth indictable offences, was compulsorily examined under the Australian Crime Commission Act 2002 (Cth) (ACC Act). At the material time the ACC Act contained a general provision entitling an examiner to summon a person to appear at an examination to give evidence (s 28(1)). A person appearing at an examination was obliged to answer a question that he or she was required to answer and it was made an indictable offence for a person to refuse or fail to answer such a question (s 30). An examiner had the power to direct that any evidence given before the examiner must not be published, or be published only in a limited way and such a direction was mandatory if the failure to do so might prejudice the fair trial of a person who had been, or might be, charged with an offence (s 25A(9)). There was direct use immunity, but not derivative (indirect) use immunity, in relation to information compulsorily provided (s 30(4) and (5)).

114 A majority of the High Court (Hayne, Kiefel & Bell JJ; French CJ & Crennan J dissenting) held that the ACC Act did not authorise an examiner to require a person charged with an offence to answer questions about the subject matter of the charged offence. In the majority view, the common law principle in issue was not the right to silence or the privilege against self-incrimination but the separate and distinct 'companion principle'. In particular, the requirement to give answers after being charged would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial [124]. The majority went further, saying that even if the answers were kept secret and could not be used by those responsible for investigating and prosecuting the matters charged, the requirement to give answers would fundamentally alter the accusatorial judicial process because the accused could no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution case; instead, the accused would have to decide the course in light of any self-incriminatory answers he was compelled to give [124], [157] (the choice of defence disadvantage).

115 The minority accepted that compulsory examination by the executive after a charge had been laid might prejudice the fair trial of the person examined where the prosecution was, as a result, afforded an unfair forensic advantage, being an advantage which would not otherwise be obtainable under ordinary rules of criminal procedure [53]. The minority recognised that statutory immunity from derivative use tends to be ineffective because of the problem of proving that other evidence is in fact derivative [50] and that not all derivative use gives rise to an unfair advantage [58]. However, they accepted that direct and derivative use immunity could and should be achieved by orders made under the protective provisions in s 25A [53] - [55].

116 In Lee No 1, the New South Wales Crime Commission (Commission) applied to the Supreme Court under the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) for the compulsory examination on oath, before a court registrar, of the appellants who had been charged with criminal offences. The appellants objected on the ground that the CAR Act did not empower an examination about conduct in respect of which there were pending criminal charges.

117 The CAR Act contained a general power to order an examination on oath of a person (s 31D(1)(a)). A person being examined was not excused from answering any question on the ground that the answer might incriminate that person. There was direct-use immunity but not derivative-use immunity (s 13A). The majority (French CJ, Crennan, Gageler & Keane JJ; Hayne & Kiefel & Bell JJ dissenting) held that s 31D empowered the court to make an order for the examination of a person charged with criminal offences about conduct that was the subject of criminal charges against that person. The minority regarded that outcome as inconsistent with the law stated by them in X7.

118 The majority had regard to the fact that the judicial character of the examination power would attract the inherent and express powers of the Supreme Court to protect against misuse of its process and against unfair prejudice to an examinee [49], [145], [319], [320]. Crennan J repeated the point made in X7 that derivative evidence may vary greatly and may be available from multiple independent sources, which factors can bear on the relationship between the use of derivative evidence by the prosecution in criminal proceedings and a fair trial [137].

119 On the legality principle, Gageler and Keane JJ (with whom Crennan J agreed on this point) said it ought not to be extended beyond its rationale which is to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature [313]. They also made observations on the collection of principles within the umbrella 'of the right to silence', noting it embraces rules 'some substantive, and some procedural; some of longstanding and some of recent origin, which differ in incidence and importance, and also as to the extent to which they have already been encroached upon by statute'. They include (1) the right of any person to refuse to answer any question except under legal compulsion; (2) the privilege of any person to refuse to answer any question at any time on the ground of self-incrimination; (3) the right of any person who believes that he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played; (4) the right of a person charged with a criminal offence to a fair trial, noting the overlap with the power of a court to restrain, as a contempt, conduct giving rise to a real risk of interference with the administration of justice [318] - [319].

120 Moreover, Gageler and Keane JJ rejected the proposition that the choice of defence disadvantage relied on by the majority in X7 was a loss of a 'legitimate forensic choice' that resulted in an unfair trial [323]. However, it was important in their reasoning that the purpose of the power of the Supreme Court to make an examination order was unrelated to a purpose associated with the institution or conduct of criminal proceedings. They said:

The power of the Supreme Court to make such an examination order can be invoked only for the purpose of enabling the Commission to obtain information for use in the proceedings in which the order is sought. The administrative power of the Commission to apply for such an order would be used for an improper purpose, foreign to the CAR Act, were the Commission to seek to use that power for a purpose of determining whether criminal proceedings should be commenced or for a purpose of assisting in the conduct of contemplated or pending criminal proceedings [327].

121 The facts in Lee No 2 are complicated. The appellants, father (JL) and son (SWL), appealed against their convictions for drugs and firearms offences on the basis that, prior to the joint trial, the prosecution was in possession of, and used, the transcripts of compulsory examinations of the appellants under the Crime Commission Act 1985 (NSW) (the CC Act). The chronology is as follows:

- on 26 November and 1 December 2009, JL was compulsorily examined by the Commission under the CC Act;

- on 7 December 2009 police executed a search warrant at an apartment in which SWL was living. Police discovered weapons, a quantity of white powder and a large amount of cash;

- on 7 December 2009, SWL was arrested and charged with firearms offences;

- on 14 December 2009, JL was charged with, relevantly, a firearm offence arising from evidence obtained pursuant to the search warrant;

- on 16 December 2009, SWL was compulsorily examined by the Commission under the CC Act;

- in May 2010 the white powder seized on 7 November 2009 was identified as a prohibited drug and both the father and son were charged with drugs offences.

122 Thus, JL was compulsorily examined before being charged with any offences and SWL was examined after being charged with the firearm offences but before being charged with the drug offences. Little attention was given to the facts in the judgment. I assume that was because of concessions made by the Crown.

123 The scheme of the CC Act was as follows. A member of the Commission had power to summon a person to appear to give evidence (s 16(1)). A person summoned to appear as a witness was not excused from answering any question on the ground that the answer would incriminate or tend to incriminate him or on any other ground (s 18B(1)). Section 13(9) relevantly provided:

The Commission may direct that:

(a) any evidence given before it,

...

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

ZANON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 91 (3 June 2016)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (371 paragraphs)

ZANON -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 91 (3 June 2016)

Ground 3- inadmissible evidence of residence

Ground 4- relationship between directions

Legislation Cited (10)

Cases Cited (19)