Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 (8 November 2018)

Strickland v CDPP [2018] HCA 53 – Detailed Summary

1. Case Header

Court: High Court of Australia

Date: 8 November 2018

Judges: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

Citation: Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53 (8 November 2018)

Procedural Posture: Appeals to the High Court of Australia from a decision of the Court of Appeal of the Supreme Court of Victoria, which had set aside permanent stays of criminal prosecutions ordered by the primary judge on the ground of abuse of process.

2. Facts

2.1 Background

The appellants, each proceeding under a pseudonym, were former officers or employees of a company referred to as XYZ Ltd.

Following an investigation, each appellant was charged with offences under the Criminal Code (Cth), including charges of conspiracy to provide a benefit not legitimately due to a person with the intention of influencing a foreign public official in order to obtain or retain business. Mr Strickland, Mr Galloway and Mr Hodges were also charged with offences under s 83(1)(a) of the Crimes Act 1958 (Vic), relating to the dishonest falsification of documents made for an accounting purpose.

Before trial, the appellants applied to the Supreme Court of Victoria for permanent stays of their prosecutions on the ground that the proceedings constituted an abuse of process.

The applications arose out of the manner in which the appellants had been compulsorily examined by the Australian Crime Commission (ACC) prior to being charged.

The primary judge (Hollingworth J – Supreme Court of Victoria, trial division) granted permanent stays of the prosecutions, concluding that aspects of the conduct of the ACC in relation to the compulsory examinations were unlawful and that the examinations occasioned forensic disadvantage to the appellants which could not be adequately remedied at trial.

The Commonwealth Director of Public Prosecutions appealed. The Victorian Court of Appeal allowed the appeals and set aside the permanent stays. The appellants then appealed to the High Court of Australia.

2.1 Material Facts

(i) AFP Investigation and Refusal of Interviews

The Australian Federal Police (AFP) conducted an investigation into alleged criminal conduct involving XYZ Ltd.

Each appellant was regarded as a suspect and was approached by the AFP to participate in a cautioned interview.

Each appellant declined to participate in an AFP interview, exercising their common law right to silence.

(ii) ACC Examinations

Following the refusal of AFP interviews, each appellant was compulsorily examined by an examiner of the ACC pursuant to the Australian Crime Commission Act 2002 (Cth) as it then stood.

At the time of the examinations:

The examiner knew that each appellant was a suspect who might be charged with criminal offences.
The examinations were purportedly conducted under the authority of an ACC special investigation, although no special ACC investigation existed in relation to the Commonwealth offences with which the appellants were later charged.

Each appellant was required to answer questions on oath, under threat of criminal sanction for non-compliance.

(iii) Presence and Involvement of AFP Officers

During the compulsory examinations:

AFP officers were permitted to observe the examinations from a nearby room.The presence of those AFP officers was not disclosed to the appellants.
The appellants were not given an opportunity to comment on the presence of the AFP officers, as required by statute.

(iv) Dissemination of Examination Material

Material obtained during the ACC examinations, including transcripts and recordings, was disseminated to:

AFP investigators; and
The Office of the Commonwealth Director of Public Prosecutions.

The dissemination of the examination material was extensive and occurred without structured limitation or effective control.
Although statutory direct-use immunity applied to the appellants answers, the information was available for derivative use in the investigation and prosecution.

(v) Charges and Forensic Consequences

Following the examinations, each appellant was charged with criminal offences.

The primary judge found that:

The primary judge found that the compulsory examinations were conducted for the purpose of assisting the AFP investigation rather than for the purposes of a lawful ACC special investigation, a conclusion which the plurality accepted in substance.
The primary judge found that the compulsory examinations occasioned forensic disadvantage to the appellants, including by compelling them to give sworn accounts which constrained their ability to depart from those versions at trial.
The primary judge found that the prosecution obtained a forensic advantage through access to the examination material and its derivative use in the investigation and preparation of the prosecution case.

3. Issues

The High Court addressed the following legal issues, as framed and resolved by its reasoning:

3.1 Whether the compulsory examinations of the appellants by the Australian Crime Commission were conducted lawfully under the Australian Crime Commission Act 2002 (Cth).

3.2 Whether the conduct of the ACC and the dissemination of examination material to the AFP and the CDPP caused such prejudice to the appellants that their prosecutions constituted an abuse of process.

3.3 Whether a permanent stay of criminal proceedings may be ordered solely where a fair trial is impossible, or whether a stay may also be required to protect the integrity of the administration of justice even where a fair trial might otherwise be achieved.

3.4 Whether the Court of Appeal erred in setting aside the permanent stays ordered by the primary judge.

4. Rule

4.1 Statutory Framework Australian Crime Commission Act 2002 (Cth)

Under the Australian Crime Commission Act 2002 (Cth), as it applied at the relevant time:

The ACC could conduct compulsory examinations only where there existed a special ACC investigation authorised and determined by the ACC Board.
Any compulsory examination had to be conducted for the purposes of that special ACC investigation.
Before determining that an investigation was a special investigation, the ACC Board was required to consider whether ordinary police methods of investigation were likely to be effective.
Examinations were required to be conducted in private, subject to statutory exceptions.
The Act conferred a direct use immunity, preventing answers given in a compulsory examination from being used in evidence against the examinee in criminal proceedings where the examinee claimed the privilege.
The Act did not confer derivative use immunity.
The examiner was required to make non-publication directions where failure to do so might prejudice the fair trial of a person who had been, or might be, charged.

OCLII Note: This subsection identifies the governing statute because the legality of the examinations, and the existence of power to compel answers, turned directly on compliance with the express requirements of the Australian Crime Commission Act 2002 (Cth). The Courts reasoning proceeded by reference to the statutes text, structure, and purpose.

4.2 Accusatorial System and the Right to Silence

At common law:

The criminal justice system is accusatorial.
A person suspected of an offence is not required to assist the prosecution in proving its case.
The common law right to silence applies at all stages of the criminal process, whether or not a person has been charged.

That right may be abrogated by statute where Parliament has clearly authorised compulsory questioning for a specific statutory purpose, but remains engaged where coercive powers are exercised otherwise than in accordance with the statute.

The criminal justice system is accusatorial. A person suspected of an offence is not required to assist the prosecution in proving its case.

The common law right to silence applies at all stages of the criminal process, whether or not a person has been charged.

OCLII Note: This subsection states common law principles without naming individual authorities because the High Court treated the accusatorial nature of criminal justice and the right to silence as settled background doctrines. These principles were assumed and reaffirmed, rather than derived from any single case, and were considered in their interaction with the statutory scheme.

4.3 Abuse of Process Permanent Stay

A superior court has inherent power to stay criminal proceedings as an abuse of process in order to protect:

The fairness of the trial; and
The integrity of the administration of justice.

A permanent stay is an exceptional remedy which may be granted where a fair trial is not possible, or where continuation of the proceedings would so compromise the integrity of the court or the administration of justice that the court cannot permit its processes to be used.

The categories of abuse of process are not closed. The determination depends on an evaluative judgment having regard to all the circumstances.

OCLII Note:This subsection is expressed at a high level of generality because the Court emphasised that the categories of abuse of process are not closed and are not governed by a fixed test. The Court described the power as evaluative and context-dependent, rather than as one derived from a single authoritative formulation.

4.4 Illegally Obtained Evidence

The fact that evidence has been obtained unlawfully does not of itself:

Render the evidence inadmissible; or
Require the proceedings to be stayed.

The question is whether, having regard to the nature, extent, and consequences of the unlawful conduct, any resulting unfairness cannot be cured, or whether permitting the prosecution to proceed would bring the administration of justice into disrepute.

OCLII Note: This subsection reflects orthodox principles restated by the Court, rather than a new rule of law. The Court treated the consequences of illegally obtained evidence as a matter of judgment in the circumstances of each case, rather than as giving rise to automatic exclusion or a mandatory stay.

5. Application

The High Court applied the governing principles by examining, in sequence, the lawfulness of the ACC examinations, the consequences of the unlawful conduct, and whether the continuation of the prosecutions constituted an abuse of process warranting a permanent stay. The Courts reasoning diverged between the plurality and the dissenting Justices.

5.1 Lawfulness of the ACC Examinations

The Court held that the compulsory examinations of the appellants were not conducted lawfully under the Australian Crime Commission Act 2002 (Cth).

Although the ACC Board had made determinations authorising investigations into certain matters, those determinations did not authorise a special ACC investigation into the Commonwealth offences with which the appellants were later charged.

The examinations were conducted for the purpose of assisting the AFP investigation, rather than for the purposes of a genuine ACC special investigation.

The examiner exercised compulsory powers:

without an extant special ACC investigation into the relevant offences; and
for an extraneous purpose not authorised by the statute.

Accordingly, the exercise of compulsory powers was unlawful because it did not occur pursuant to a special ACC investigation relating to the relevant offences or for the purposes authorised by the statute, with the consequence that the appellants common law right to silence was infringed.

5.2 Use of ACC Powers to Circumvent the Accusatorial Process

The plurality held that the ACCs conduct was incompatible with the accusatorial nature of the criminal justice system.

The appellants had exercised their right to decline AFP interviews. The subsequent use of ACC compulsory examinations effectively compelled them to answer questions about offences of which they were suspected, in circumstances where prosecution was foreseen.

The plurality rejected the submission that this conduct was validated by authority permitting compulsory questioning of suspects prior to charge, holding that such authority applied only where compulsory powers were exercised lawfully and for the purposes authorised by statute.

Because the ACC powers were used unlawfully and for the purpose of assisting police investigation, the examinations operated as an impermissible means of overcoming the appellants refusal to assist the prosecution.

5.3 Dissemination of Examination Material and Forensic Consequences

The Court examined the dissemination of examination material to the AFP and the CDPP.

The plurality found that dissemination was widespread and uncontrolled, and occurred without adequate consideration of the statutory obligation to prevent prejudice to a fair trial.

Although the ACC Act conferred direct use immunity, the absence of derivative use immunity meant that the information obtained during the examinations could inform investigative strategy, charging decisions, and trial preparation.

The primary judge had found that the examinations caused forensic disadvantage to the appellants, including by locking them into sworn versions of events from which they could not credibly depart at trial, and that the prosecution derived a corresponding forensic advantage.

The plurality accepted that these consequences flowed from the unlawful examinations and, in the circumstances, were not capable of being adequately neutralised by curative measures at trial.

5.4 Abuse of Process Integrity of the Administration of Justice (Plurality)

The plurality held that the continuation of the prosecutions would constitute an abuse of process requiring a permanent stay.

The Court emphasised that the power to stay proceedings is not confined to cases where a fair trial is impossible. A stay may also be required to protect the integrity of the administration of justice.

In the present case:

The ACC acted in disregard of stringent statutory safeguards enacted to protect personal liberty and trial fairness.
The unlawful conduct was systemic and extended before, during, and after the examinations.
The statutory scheme was used in a manner fundamentally inconsistent with its purpose.

The plurality concluded that, in the circumstances, the defect was not capable of cure by measures such as replacing prosecutors, excluding evidence, or giving jury directions.

5.5 Rejection of the Could Have Been Done Lawfully Argument

The CDPP submitted that the ACC could have conducted a lawful special investigation and that, had it done so, the same forensic position might have resulted.

The plurality rejected this submission, holding that the existence of a hypothetical lawful alternative did not cure the illegality of what was actually done and that there was no proper basis to assume that such an alternative would have been authorised or implemented.

The Court held that the existence of a hypothetical lawful alternative did not cure the illegality of what was actually done.

There was no basis to assume that the ACC Board would have authorised a special investigation into the relevant offences, nor that the statutory safeguards would have been complied with had such an investigation existed.

The unlawful conduct could not be justified by speculation about what might have occurred under a different statutory process.

5.6 Dissenting Reasoning Fair Trial and Curative Measures

Gageler and Gordon JJ dissented. They accepted that the ACC examinations were unlawful and that the conduct of the ACC and AFP was open to serious criticism.

However, they held that a permanent stay was not justified at the present stage because it could not yet be concluded that a fair trial was impossible or that curative measures would be inadequate.

The dissenting Justices reasoned that:

The direct use immunity was preserved.The prosecution team could be replaced and quarantined from the examination material.
Trial judges possessed extensive powers to exclude evidence, give directions, or grant a stay if necessary.
It could not be concluded in advance that a fair trial was impossible.

They held that the misconduct of investigative authorities did not, of itself, bring the administration of justice by the court into disrepute, and that the appropriate focus was on whether the court could ensure a fair trial.

5.7 Dissenting Emphasis on Institutional Roles

The dissenting Justices drew a distinction between the administration of justice by investigative agencies and the administration of justice by courts.

They held that while the conduct of the ACC and AFP had brought law enforcement into disrepute, it did not necessarily follow that the courts processes would be compromised by allowing the prosecutions to proceed.

In their view, the integrity of the court could be maintained through judicial control of the trial process.

6. Conclusion

By majority, the High Court allowed the appeals.

The Court set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria and in their place ordered that the appeal to that Court be dismissed, with the result that the orders of the primary judge permanently staying the prosecutions were restored.

Kiefel CJ, Bell, Nettle and Keane JJ formed the plurality in support of that outcome. Edelman J agreed with the orders allowing the appeals, giving separate reasons.

Gageler and Gordon JJ dissented, holding that the appeals should be dismissed and that the prosecutions could proceed subject to curative measures at trial.

7. Precedent / Legal Principles

The decision affirms and clarifies the following:

7.1 Statutory coercive powers must be exercised strictly in accordance with their conferring statute. Use of compulsory examination powers for a purpose not authorised by statute is unlawful.

7.2 The common law right to silence and the accusatorial nature of criminal justice remain fundamental features of the criminal process, subject only to clear and lawful statutory abrogation.

7.3 A permanent stay of criminal proceedings may be ordered not only to prevent an unfair trial, but also to protect the integrity of the administration of justice.

7.4 The categories of abuse of process are not closed, and the determination depends on an evaluative judgment of all the circumstances.

7.5 Unlawful investigative conduct may warrant a permanent stay, even where a fair trial might otherwise be possible, where the nature, extent and consequences of the statutory non-compliance are such that permitting the prosecution to proceed would compromise the integrity of the administration of justice.

7.6 The existence of a hypothetical lawful alternative does not excuse or neutralise unlawful conduct actually undertaken, where the statutory conditions for such an alternative were neither satisfied nor shown to have been likely to be authorised.

8. Ratio Decidendi

Where coercive statutory examination powers are exercised unlawfully in serious disregard of statutory safeguards and for an unauthorised purpose, and where the consequences of that conduct are such that they cannot be adequately cured and would compromise the integrity of the courts processes, a permanent stay of prosecution may be required as an exercise of the courts power to prevent an abuse of process, notwithstanding that a fair trial might otherwise be achievable.