In Tony Strickland (a Pseudonym) v Commonwealth Director of Public Prosecutions & Ors; Donald Galloway (a Pseudonym) v Commonwealth Director of Public Prosecutions & Ors; Edmund Hodges (a Pseudonym) v Commonwealth Director of Public Prosecutions & Ors; Rick Tucker (a Pseudonym) v Commonwealth Director of Public Prosecutions & Ors  HCA 53 the majority of the High Court ordered a permanent stay against the prosecutions of the Appellants due to forensic disadvantage.
The Australian Crime Commission (‘the ACC’) under section 7C of the Australian Crime Commission Act 2002 (CTH) (‘the ACC Act’) has as part of its function to investigate matters that are related to relevant federal criminal activity. To this effect, under Division 2 of Part II of the ACC Act the ACC has special investigative powers in regards to its examinations. Relevantly, a witness in the investigation is prohibited from refusing to answer a question, where the examiner requires an answer from the individual, under section 30(3)(a).
In late 2008, the ACC gained information alleging that the company that the Appellants were employed under was involved in criminal activity. However, the allegations were referred to the Australian Federal Police (‘the AFP’). The Appellants each declined to participate in a recorded interview with the AFP. However, in 2010, the ACC compulsorily examined the Appellants, with several officers of the AFP watching the examinations in a nearby room. Their presence was not disclosed to the Appellants. Additionally, following these examinations, orders were made permitting the distribution of the examination material to the AFP and to the Commonwealth Director of Public Prosecutions (‘the CDPP’). The Appellants were consequently charged.
At pre-trial applications in the Supreme Court of Victoria, the primary judge ordered a permanent stay on each charge. Keifel CJ, Bell and Nettle JJ summarises the primary judge’s reasoning in -:
“[A]s the primary judge found, information obtained from the examinations was used to compile the prosecution brief and to obtain evidence against the appellants in circumstances where the AFP had no entitlement to obtain such information and would not have been able to do so if Sage [the ACC examiner] had not exercised his powers inappropriately. The prosecution had therefore gained an unfair forensic advantage as a result of the prosecution brief having been prepared, at least in part, using information from the examinations. Moreover, as her Honour found, numerous investigators who were privy to the examinations would continue to be involved in giving evidence, liaising with witnesses, and suggesting avenues of examination and tactical decisions to be made at trial.
In the result, the primary judge found in relation to [the Appellants] Strickland, Hodges and Tucker that the practical effect of each of their examinations had been to constrain their legitimate forensic choices in the conduct of their trials because of the answers they were compelled to give during those examinations. … But as her Honour later acknowledged, all of the appellants, including possibly Galloway, had been deprived of a forensic choice to test before a jury the basis upon which the documents in the prosecution brief were selected. …
On that basis, the primary judge concluded that the prosecutions should be permanently stayed not only because of the forensic disadvantage to which the appellants have been subjected as a result of the unlawful dissemination of the examination product but also in order to protect public confidence in the administration of justice.”
Gageler J summarises the Court of Appeal’s findings in -:
“On appeal by the CDPP, the orders of the primary judge were set aside in a unanimous decision of the Court of Appeal constituted by Maxwell P, Redlich and Beach JJA. Contrary to the conclusions reached by the primary judge, the Court of Appeal held that the summoning and examination of each appellant was unlawful because the examinations were not conducted "for the purposes of a special ACC operation/investigation" within the meaning of s 24A of the ACC Act and because the examinations were conducted for the improper purpose of assisting in a criminal investigation conducted not by the ACC but by the AFP. …
Further, the Court of Appeal did not accept that the compulsory examinations had been shown by the evidence adduced before the primary judge to have resulted in any forensic disadvantage to the appellants or forensic advantage to the prosecution which could not be remedied to an extent sufficient to ensure that the appellants are able to receive a fair trial. …
The Court of Appeal was also unable to discern anything in the improper purpose which it had identified, or otherwise in the circumstances of the case, which would bring the proceedings "into the exceptional category where a stay is necessary, absent unfairness, in order to preserve public confidence in the administration of justice".”
The High Court unanimously held that the ACC had acted unlawfully. The ACC was found to have acted at all times as simply a facility for the AFP to examine the Appellants for the AFP’s own purposes. The majority at the High Court held that consequently, the appellant’s stay applications be granted. Furthermore, the High Court noted that due to the nature of ACC examinations, the Appellants were compelled to answer questions, which they would have otherwise been able to lawfully decline to answer, and in doing so had locked the Appellants into a version of events that they could not credibly depart from at trial. And for this reason, the Appellants suffered a forensic disadvantage and as a consequence the prejudice to the fair trials of the Appellants was incurable.
Edelman J concludes his judgment by noting in :
“It is an extreme measure to stay proceedings permanently as an abuse of process on the basis that the administration of justice would be brought into disrepute. But a permanent stay can be ordered where, despite the public interest in prosecuting reasonably suspected crime, no less extreme remedial measure will sufficiently avoid the damage to the integrity of the court. The integrity of the court would be impaired by trials of the appellants. No lesser remedial measure was offered or available to prevent the stultification of key safeguards in the ACC Act and the achievement of the unlawful purposes for which those safeguards were contravened.”
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Tony Strickland (a Pseudonym) v Commonwealth Director of Public Prosecutions & Ors; Donald Galloway (a Pseudonym) v Commonwealth Director of Public Prosecutions & Ors; Edmund Hodges (a Pseudonym) v Commonwealth Director of Public Prosecutions & Ors; Rick Tucker (a Pseudonym) v Commonwealth Director of Public Prosecutions & Ors  HCA 53 (8 November 2018) and transcripts and summaries.
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