Strickland v CDPP [2018] HCA 53 – Concise Summary

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1. Case Header

Citation: Strickland v CDPP [2018] HCA 53

Court: High Court of Australia

Date: 8 November 2018

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

2. Facts

2.1 Background

The appellants, proceeding under pseudonyms, were former officers or employees of a company referred to as XYZ Ltd.They were charged with offences under the Criminal Code (Cth), including conspiracy to provide a benefit not legitimately due to influence a foreign public official. Mr Strickland, Mr Galloway and Mr Hodges were also charged under s 83(1)(a) of the Crimes Act 1958 (Vic).Before trial, the appellants applied for permanent stays of their prosecutions on the ground of abuse of process arising from compulsory examinations conducted by the Australian Crime Commission (ACC).Hollingworth J (Supreme Court of Victoria) granted permanent stays. The Victorian Court of Appeal set those orders aside. The appellants appealed to the High Court.

2.2 Material Facts

(i) AFP InvestigationThe AFP investigated the appellants as suspects and sought cautioned interviews, which the appellants refused.

(ii) ACC ExaminationsFollowing that refusal, the appellants were compulsorily examined by the ACC under the Australian Crime Commission Act 2002 (Cth). The examinations were purportedly conducted under a special investigation, although no such investigation existed in relation to the offences later charged.

(iii) AFP InvolvementAFP officers observed the examinations without disclosure to the appellants and without compliance with statutory requirements.

(iv) DisseminationExamination material was disseminated to the AFP and the CDPP. Direct-use immunity applied, but the material was available for derivative use.

(v) Forensic ConsequencesThe trial judge found that the examinations assisted the AFP investigation, caused forensic disadvantage to the appellants, and conferred a forensic advantage on the prosecution. The plurality accepted those conclusions in substance.

3. Issues

3.1 Whether the ACC examinations were conducted lawfully under the Australian Crime Commission Act 2002 (Cth).

3.2 Whether the conduct of the ACC and dissemination of examination material resulted in an abuse of process.

3.3 Whether a permanent stay may be ordered to protect the integrity of the administration of justice even if a fair trial might otherwise be possible.

3.4 Whether the Court of Appeal erred in setting aside the permanent stays.

4. Rule

4.1 Statutory Framework Australian Crime Commission Act 2002 (Cth)

Under the Australian Crime Commission Act 2002 (Cth), compulsory examinations may be conducted only pursuant to a valid special ACC investigation and strictly for authorised statutory purposes. The Act confers direct-use immunity but not derivative-use immunity and requires safeguards to prevent prejudice to a fair trial.

4.2 Accusatorial System and the Right to Silence

At common law, the criminal justice system is accusatorial and a suspect is not required to assist the prosecution. That right may be abrogated only by clear statutory authorisation and remains engaged where coercive powers are exercised unlawfully.

4.3 Abuse of Process Permanent Stay

A superior court may permanently stay proceedings to prevent unfairness or to protect the integrity of the administration of justice. The categories of abuse of process are not closed and depend on evaluative judgment.

4.4 Illegally Obtained EvidenceIllegality alone does not require exclusion or a stay

The question is whether the consequences of the unlawful conduct cannot be cured or would bring the administration of justice into disrepute.

5. Application

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.

5.1 Lawfulness of the ACC Examinations

The Court held that the ACC examinations were unlawful because they were not conducted pursuant to a valid special investigation and were undertaken to assist the AFP investigation.

5.2 Circumvention of the Accusatorial Process

The plurality held that the unlawful use of compulsory examinations impermissibly circumvented the accusatorial process and the appellants right to silence.

5.3 Dissemination and Forensic Consequences

The plurality accepted that dissemination of examination material caused forensic disadvantage that could not be adequately neutralised by curative measures.

5.4 Abuse of Process Integrity of Justice (Plurality)

The plurality held that continuation of the prosecutions would compromise the integrity of the administration of justice and required permanent stays.

5.5 Could Have Been Done Lawfully Argument

The plurality rejected the submission that hypothetical lawful alternatives cured the illegality, holding that such alternatives were speculative and unauthorised.

5.6 Dissent Fair Trial and Curative Measures

Gageler and Gordon JJ dissented, holding that curative measures could ensure a fair trial and that a permanent stay was premature.

5.7 Institutional Roles

The dissent distinguished between misconduct by investigators and the integrity of the courts processes, concluding that the latter could be protected at trial.

6. Conclusion

By majority, the High Court allowed the appeals and restored the permanent stays. Kiefel CJ, Bell, Nettle and Keane JJ formed the plurality. Edelman J agreed in the result. Gageler and Gordon JJ dissented.

7. Precedent Legal Principles

7.1 Statutory coercive powers must be exercised strictly in accordance with their conferring statute.

7.2 The common law right to silence and accusatorial process remain fundamental.

7.3 Permanent stays may protect trial fairness and institutional integrity.

7.4 Abuse of process is evaluative and not closed.

7.5 Serious unlawful investigative conduct may warrant a stay notwithstanding possible trial fairness.

7.6 Hypothetical lawful alternatives do not cure actual illegality.

8. Ratio Decidendi

Where coercive statutory examination powers are exercised unlawfully in serious disregard of statutory safeguards and for an unauthorised purpose, and the consequences of that conduct cannot be adequately cured, a permanent stay may be required to prevent an abuse of process, notwithstanding that a fair trial might otherwise be achievable.