The "X7" line of authorities and criminal prosecutions
Alana McCarthy, CSO Senior Solicitor
Summary of a seminar dated 20 May 2015
In late 2014 amendments were made to the Crime Commission Act 2012 (NSW) ("the Crime Commission Act"). The Crime Commission Act was amended by the Crime Commission Legislation Amendment Act 2014 (NSW), which commenced on assent on 28 November 2014. Of particular note is s. 45C which relates to applications for stay of criminal proceedings in circumstances where an accused has been compulsorily examined before the NSW Crime Commission and/or in circumstances where there has been disclosure of evidence, or a record of any evidence, given before the Commission.
The amendments to the Crime Commission Act were in response to two High Court decisions which "…have thrown into doubt the use of compulsory examination powers". (Second Reading Speech, Crime Commission Legislation Amendment Bill (NSW), 11 November 2014 (Mr Stuart Ayres). Those decisions were X7 v Australian Crime Commission (2013) 248 CLR 92;  HCA 29 ("X7 (No. 1)") and Lee v R  HCA 20 ("Lee (2014)"). Both decisions raised issues as to the conduct of criminal prosecutions against a background of the use of coercive powers. In the wake of those decisions, a number of applications have been made for stay of criminal proceedings in such circumstances.
A number of the cases where applications have been made for stay of proceedings on the basis of X7 (No. 1) are still before the courts and/or are the subject of non-publication orders. As such, discussion of this line of authorities is limited. This paper focuses on the issues raised in X7 (No. 1) and Lee (2014) and the NSW Court of Criminal Appeal ("the NSW CCA") decision in the stay application following X7 (No. 1): X7 v R  NSWCCA 273 ("X7 No. 2") (read decision on NSW Caselaw).
X7 (No. 1)
In X7 (No. 1) a majority of the High Court held that the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") did not permit an examiner appointed under that Act to compel a person charged with an offence to answer questions about the subject matter of the offence. Justices Hayne and Bell delivered a joint judgment. Their reasons included the following:
- To authorise the compulsory examination of a person charged with, but not yet tried for, an offence about the subject matter of that charge would alter the process of criminal justice to a marked degree even if the answers given were kept secret from those investigating and prosecuting the charge or inadmissible at trial. That was because any admission made at the examination would hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case and that would radically alter what would otherwise be a wholly accusatorial process. For a departure of that kind to be made by statute, it must be made by express words or necessary intendment (at -,  and ).
- The whole process of criminal justice is accusatorial, commencing with the investigation of crime and culminating in a trial. If the ACC Act provisions were to permit the compulsory examination of a person charged with an offence about the subject matter of that charge, it would effect a fundamental alteration to the criminal justice process (at  and ).
Their Honours emphasised that their conclusions did not depend on classifying a trial after a compulsory examination as "unfair" but said that the relevant question was whether the accused would have a trial according to law (at ). Their conclusions on the construction of the ACC Act did not rest on considerations of stated or unstated assumptions about how a balance should be struck in the criminal justice system between individual rights and society's expectation as to the detection and punishment of crime (at ).
Justice Kiefel agreeing with Hayne and Bell JJ emphasised (at  – ) that the onus of proof is on the prosecution; an accused cannot be compelled to assist the prosecution; and the accusatorial nature of the criminal justice system involves not only the trial but pre-trial inquiries/investigations.
The minority found that it was necessarily implied by the ACC Act that the examination powers apply to persons charged with an offence, and that the ACC Act reflects a legislative judgment that the public interest in the continuing investigation of serious crime is elevated over the private interest in claiming privilege against self-incrimination (at -). Chief Justice French and Crennan J considered it significant that there were safeguards in the ACC Act including the direct use immunity and power to make non-publication directions. It was further observed by the minority that a trial judge has a discretion as to the admissibility of evidence, and the court has a power to control any use of derivative evidence which amounts to an abuse of process (at ).
In Lee (2014) the High Court (French CJ, Crennan, Kiefel, Bell and Keane JJ), following X7 (No. 1), unanimously held that disclosure of transcripts to the prosecution of the compulsory examination of the appellants conducted pursuant to the New South Wales Crime Commission Act 1985 (NSW) ("the former Crime Commission Act") where a non-publication direction had been made under s. 13(9) of that Act was unlawful and that such disclosure constituted a fundamental departure from the right to a fair trial. (Section 13(9) of the former Crime Commission Act was in similar terms to s. 45(2) of the Crime Commission Act.) The Court's reasons for the decision included the following:
- The purpose of s. 13(9) was to protect the fair trial of a person who might be charged with offences, which would usually require that the NSW Crime Commission quarantine evidence given by a person to be charged from those involved in the prosecution, to make a direction to that effect, and to maintain the prohibition in the face of requests for access to the evidence, as any subsequent trial absent those protections would differ in a fundamental respect from that which our criminal justice system seeks to provide. The decision to publish the transcripts to the prosecution was unlawful because the decision was made without regard to the protective purpose of s. 13(9) and, as such, was no decision at all in law (at  and ).
The criminal justice system reflects a balance struck between the power of the State to prosecute and the position of an individual accused. The fundamental principle is that the onus is on the prosecution to prove the guilt of an accused (at ). It was emphasised (at ) that the appeal did not fall to be decided by whether "practical unfairness" was demonstrated. Rather, the case was one concerning the very nature of a criminal trial and its requirements in our criminal justice system. The appellants' trial was "altered in a fundamental respect" by the prosecution having the appellants' evidence before the NSW Crime Commission as the balance of power had shifted to the prosecution (at ).
Consequences for criminal prosecutions – stay applications
The decision in X7 (No. 1) turned on a question of statutory construction. Significantly, X7 (No. 1) did not consider the consequences for criminal proceedings where coercive powers have been utilised in relation to the investigation. Those issues have arisen in the applications for permanent stay of proceedings in reliance on X7 (No. 1) and the comments of the High Court in Lee (2014).
Permanent stay of a trial is a drastic remedy. It is tantamount to a continuing immunity from prosecution: R v Glennon (1992) 173 CLR 592 at 599; Dupas v The Queen (2010) 241 CLR 237 at , and amounts, in effect, to a refusal by the court to exercise jurisdiction: Jago v The District Court of NSW (1989) 168 CLR at 76.
Because it is such a drastic remedy, the power to grant a stay is one of limited scope and an order will only be made in extreme or exceptional circumstances and where there is no other available means of bringing about a fair trial: Walton v Gardiner (1993) 177 CLR 378 at 392; Barton v The Queen (1980) 146 CLR 75 at 102, 106; Jago v The District Court of NSW (1989) 168 CLR at 33, 60-61; Dupas v The Queen (2010) 241 CLR 237 at ; The Queen v Edwards (2009) 83 ALJR 717 at ; Moti v The Queen (2011) 245 CLR 456 at .
The onus is on the applicant to establish the factual circumstances which ground the application and that a stay should be granted in the circumstances: Boulos v R  NSWCCA 119 at 46; R V Stringer (2000) 116 A Crim R 198 at .
X7 (No. 2)
Subsequent to the decision in X7 (No. 1), the accused applied for a permanent stay of proceedings in the District Court of NSW. The application was refused on the basis that the evidence established that no one associated with the investigation was present when the accused was compulsorily examined and there was no evidence that material obtained at that examination was disseminated to anyone involved in the investigation or the prosecution of the charges against the accused. The primary judge found that the accused had not demonstrated that he would suffer any actual prejudice were the trial to proceed and, in the circumstances, refused to grant a stay. The appeal was heard before the full bench of the NSW CCA (Bathurst CJ, Beazley P, Hidden, Fullerton and Hulme JJ). The Court delivered its decision in November 2014, dismissing the appeal.
The Chief Justice noted that the authorities in relation to stay applications demonstrate that:
- The power to grant a permanent stay will rarely be exercised because of significant countervailing considerations in criminal proceedings; namely the interests of the community and victims of crime in the enforcement of the criminal law (at ).
- A permanent stay will be ordered where there is a fundamental defect of such a nature that there is nothing that a judge could do in the conduct of the trial to relieve against its unfair consequences. This implied a necessity on the part of an applicant for a stay to identify both the fundamental defect and the unfair consequences (at ).
Irrespective of whether or not unfairness is demonstrated, a stay may be granted if the use of the court proceedings brings the administration of justice into disrepute (at ).
The Chief Justice held (at ) that X7 (No. 1) is authority for the following: as a matter of construction, the ACC Act did not permit examination of a charged person about the matters for which they had been charged because this would fundamentally alter the accusatorial process; such an examination constituted a contempt; and the conclusion did not depend on the fairness or otherwise of the trial, as what was required was a trial according to law. His Honour referred (at ) to the decision of Hayne and Bell JJ in X7 (No. 1), noting that they emphasised that their conclusion did not rest on stated or unstated assumptions as to how the balance should be struck between individual rights and society's expectation as to the detection and punishment of crime. His Honour noted, however, that those considerations are relevant to the question of a stay.
The Chief Justice held (at ) that neither the decision in X7 (No. 1) or in Lee (2014) compelled the conclusion that the fact of an unauthorised examination, on its own, requires an order that there be a permanent stay of criminal proceedings relating to matters the subject of the examination. His Honour said that to grant a stay in such a case would be to grant one without regard to the nature and extent of the unfairness which results. It would also fail to take into account the interests of the community in the prosecution of serious criminal offences. Further, his Honour noted (at ) that, if in fact the examination was productive of actual unfairness, the appellant would be able to establish that without suffering further unfairness or injustice.
Justice Beazley, agreeing with the Chief Justice, noted that the authorities in relation to a permanent stay indicate that it will only be granted in an extreme case and in circumstances where it has been established that there is a fundamental defect of such a nature that the trial judge in the conduct of the trial cannot relieve against its unfair consequences. Her Honour emphasised that the authorities make it clear that it is the consequences of the defect which dictates whether or not a stay will be granted (at ).
Returning to the Crime Commission Act amendments, s. 45C was introduced:
"…to reduce the likelihood of a successful application for a stay of proceedings being made as a result of the Commission's compulsory examination or disclosure of compulsorily obtained material to, for example, the police or DPP." (Second Reading Speech, Crime Commission Legislation Amendment Bill (NSW).)
The section sets out matters to which a court must have regard when considering a stay application and is, essentially, a codification of the common law in respect of the principles relating to grant of a stay. Section 45C(3) sets out matters that are not capable of giving rise to a presumption of the kind of fundamental defect that would be a ground on which a court may stay criminal proceedings including the provision of a transcript to investigators or prosecutors, or the fact that evidence was derived as a result of dissemination of a transcript.
It was noted in the Second Reading Speech that the outcome of cases currently before the courts may necessitate further legislative amendment. Given there are cases "in the wings" and perhaps further stay applications yet to be made, it would seem that these issues are far from settled. It should be noted also that the amendments to the Crime Commission Act are yet to be tested.
On 15 May 2015, the High Court refused a special leave application in relation to X7 (No. 2). At the conclusion of brief reasons, French CJ (who sat with Kiefel J) said that "absence of practical unfairness is always a relevant consideration" on a stay application. As noted by the Chief Justice in X7 (No. 2) at , although such remarks do not constitute binding authority they do provide "guidance" amounting to "dicta" and have "persuasive value": See also, Sir Anthony Mason, "The Use and Abuse of Precedent" (1988) 4 Aus Bar Review 93; Bird v Colonial Spark Plugs Pty Ltd (1942) 66 CLR 43; Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360; Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253.
As foreshadowed by the Chief Justice, at the very least, it suggests that the issues raised by X7 (No. 1) are yet to be resolved.