FEDERAL COURT OF AUSTRALIA QAAB v Australian Crime Commission [2014] FCA 747 Citation: QAAB v Australian Crime Commission [2014] FCA 747 Parties: QAAB v AUSTRALIAN CRIME COMMISSION and ANN GRAHAM, SUED IN HER CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) File number: QUD 260 of 2014 Judge: LOGAN J Date of judgment: 16 July 2014 Catchwords: CRIMINAL LAW – crime and corruption commissions – examination of person – where person not yet charged with offence – where, objectively, person might be suspected of the commission of an offence – right to silence – whether right extends to pre-charging investigations and inquiries – whether right abrogated by statue – accusatorial system of justice – statutory interpretation – Australian Crime Commission Act 2002 (Cth) ss 4, 4A, 7, 7A, 25A, 28, 29A, 30 Legislation: Australian Crime Commission Act 2002 (Cth) ss 4, 4A, 7, 7C, 25A, 28 Judiciary Act 1903 (Cth) Criminal Code (Cth) Pt 9.1 Drugs Misuse Act 1986 (Qld) s 8 Police Powers and Responsibilities Act 2000 (Qld) Criminal Assets Recovery Act 1990 (NSW) New South Wales Crime Commission Act 1985 (NSW) s 13 Cases cited: A v Bolton (2004) 136 FCR 420 cited Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 cited Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 followed Lake v Quinton [1973] 1 NSWLR 111 considered Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 considered Lee v R (2014) 88 ALJR 656 considered Woolmington v Director of Public Prosecutions [1935] AC 462 cited X7 v Australian Crime Commission (2013) 248 CLR 92 followed Date of hearing: 11 July 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the Applicant: Mr A Hoare Solicitor for the Applicant: Legal Aid Queensland Counsel for the Respondents: Ms S Maharaj QC Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 260 of 2014 BETWEEN: QAAB Applicant AND: AUSTRALIAN CRIME COMMISSION First Respondent ANN GRAHAM, SUED IN HER CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) Second Respondent JUDGE: LOGAN J DATE OF ORDER: 16 JULY 2014 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondents' costs of and incidental to the application, to be taxed if not agreed. 3. In the taxation of those costs, no allowance is to be made by the registrar for expenses of or incidental to travel and accommodation in respect of the respondents' counsel. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 260 of 2014 BETWEEN: QAAB Applicant AND: AUSTRALIAN CRIME COMMISSION First Respondent ANN GRAHAM, SUED IN HER CAPACITY AS AN EXAMINER APPOINTED UNDER THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) Second Respondent JUDGE: LOGAN J DATE: 16 JULY 2014 PLACE: BRISBANE REASONS FOR JUDGMENT 1 It was in Woolmington v Director of Public Prosecutions [1935] AC 462 at 481 that the then Lord Chancellor, Viscount Sankey, with whom the other members of the House of Lords agreed, famously stated, "Throughout the web of the English Criminal Law one golden thread is always to be seen, that is that it is the duty of the prosecution to prove the prisoner's guilt [subject to the defence of insanity and any statutory exception]." Later in that same case, the Lord Chancellor stated (at 481-482): No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. 2 Unsurprisingly, given our heritage, this same principle forms part of the common law of Australia: Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 503 (EPA v Caltex Refining Co). Thus, our system of criminal justice also is accusatorial, not inquisitorial. Under that system it is for the Crown to allege and to prove beyond reasonable doubt the guilt of an accused. A corollary of the obligation which falls on the Crown is that an accused person has a right to remain silent. So cardinal are these features that, in Australia, too, no judge would entertain an attempt to "whittle down" the position at common law. That said, it must also be conceded that, within the limits of its constitutionally mandated legislative competence, it is open to Parliament, expressly or by necessary implication and for reasons it thinks fit, to make alterations to that system. 3 The applicant claims the benefit of this common law principle. He claims that it continues to govern the position in which he finds himself, notwithstanding the provisions of the Australian Crime Commission Act 2002 (Cth) (ACC Act). His position is that of a person facing examination under that Act. He sues under a pseudonym so as to preserve the privacy which attends examinations under the ACC Act. In order to supply the requisite factual context for the determination of this application, it is nonetheless necessary to give some further detail as to the background circumstances. 4 The applicant was found at premises where a search warrant issued by a justice of the peace under the Police Powers and Responsibilities Act 2000 (Qld) was executed by members of the Queensland Police Service (QPS). The finding of some drug paraphernalia there led to his being charged with certain, relatively minor drug offences under Queensland law. He has since been dealt with in respect of those offences and, as a result, placed on probation. 5 Also found at those premises was a drum housing a large quantity of a chemical. The case before me was conducted on the footing that the chemical concerned was or at least could be (for the chemical has industrial applications) a precursor chemical which was "border controlled" for the purposes of Part 9.1 of the Criminal Code (Cth) (Criminal Code) and a dangerous drug for the purposes of the Drugs Misuse Act 1986 (Qld) (Drugs Misuse Act). Another basis upon which the proceeding was conducted was that a delivery document associated with the drum contains the applicant's name and signature. These facts may be contentious in other proceedings but I assume for the purposes of this proceeding that the chemical had these adverse characteristics in fact and in law and that these particulars do appear on the delivery document. 6 It is common ground in this case that the quantity of the chemical found at the premises is such that, were the applicant to be convicted of its importation or possession or a conspiracy to import it contrary to the Criminal Code or its possession contrary to s 8 of the Drugs Misuse Act, he would face a maximum penalty of imprisonment for 25 years. He has not, at least as yet, been charged with any such offence or for that matter with any other in relation to the chemical found in the drum. Equally, he neither has the benefit of a Royal Pardon issued on advice by a relevant Vice Regal officer under delegated authority from the Sovereign in respect of any offence relating to the chemical nor even of an indemnity by which an undertaking is given by a responsible officer of the relevant body politic that he will not be charged with any such offence. 7 The applicant claims that it is not lawfully possible for the first respondent (ACC), which is the unit of Federal public administration established by s 7 of the ACC Act, by the second respondent, who is an examiner appointed under the ACC Act, to compel him to give evidence or to produce documents or things concerning the subject of an examination summons dated 13 March 2014, issued under s 28 of the ACC Act and served on him. He has applied under the Judiciary Act 1903 (Cth) (Judiciary Act) for an injunction restraining his examination by the respondents. 8 The applicant attended on the date and at the place required by the summons. Proceedings in respect of that summons have since been adjourned from time to time by the examiner, most recently so as to allow the bringing of the present application. They presently stand adjourned to 31 July 2014. Each of the parties sought an urgent hearing of the case. While the respondents commendably signified a readiness further to adjourn proceedings in respect of the summons so as to meet the Court's convenience in respect of the delivery of a judgment, they equally wish to proceed with the applicant's examination and to do so as soon as possible. The applicant for his part wishes to do neither more nor less than lawfully comply with the summons. 9 That the ACC Act does not authorise the compulsory examination of a person charged with, but not yet tried for, a Commonwealth indictable offence about the subject matter of that offence was settled last year by the High Court: X7 v Australian Crime Commission (2013) 248 CLR 92 (X7 v ACC). In that case, the High Court held, albeit by majority, that such an examination was inconsistent with the general and fundamental, accusatorial nature of Australia's criminal justice system and that neither expressly nor by necessary implication did the ACC Act evince an intention nonetheless to authorise it. Determinative of that outcome was that the obligation to give answers under compulsory examination would deprive the person charged of deciding the course to adopt at trial according to the strength of the prosecution case either as provided in advance of trial or the evidence led by the prosecution at trial. 10 The applicant's point is that the criminal justice system extends to the investigation process that leads to charging and trial. He contends that the risk of prejudice of the kind described is no less present in the circumstances of this case even though he has not been charged. For that reason, he submits that he is entitled to the relief sought. For their part, the respondents contend that it is not apparent either from the summons itself or the ACC determination which preceded it that the applicant is the subject of an investigation directed towards his being charged with an offence in relation to the chemical found. Further and in any event, they contend that there is no reason to believe that the second respondent as examiner will do anything other than make comprehensive orders under s 25A(9) of the ACC Act, which will be sufficient to address any prejudice that the applicant might suffer from the examination. And that examination, they submit, is authorised by the ACC Act. 11 In their joint judgment in X7 v ACC, at [72] to [76], Hayne and Bell JJ offer a summary of provisions of the ACC Act pertinent to that case. These provisions are no less pertinent in the present case. I therefore gratefully adopt that summary. I propose merely to supplement it by referring to some further provisions made additionally relevant by the circumstances of the present case. 12 On 4 September 2013, the Board of the ACC made a determination under s 7C of the ACC Act entitled the Australian Crime Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No 2) 2013 (determination). That determination was made prior to the issuing and execution of the search warrant at the premises where both the applicant and the drum containing the chemical were found. The definition (cl 4) in the determination of "high risk and emerging drugs" (HREDs) is cast in a way which includes precursors. The particular chemical found is not named in the determination but such is the generality of the definition of HREDs that this chemical falls within it. The importation or possession or a conspiracy to import this chemical contrary to the Criminal Code or its possession contrary to s 8 of the Drugs Misuse Act would fall within the specified criminal activity set out in Schedule 1 to the determination. The description in the determination of circumstances or allegations concerning specified criminal activity is cast at a level of generality which does not descend to the naming of particular individuals. Thus, neither the applicant nor any person with whom he is said to be associated is named in the determination. 13 The determination authorises an "intelligence operation" which is, for the purposes of the ACC Act, a "special operation". That means that the ACC has, by the determination, authorised the conduct of what the ACC Act defines (s 4 – paragraph (a) of definition) as a "special ACC operation/investigation". An "intelligence operation" is defined (s 4) to mean "an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity, but that may involve the investigation of matters relating to federally relevant criminal activity". 14 "Federally relevant criminal activity" is also a defined (s 4) term and includes offences against the laws of a State which have what the ACC Act terms (s 4A(2)) a "federal aspect". The importation or possession of or a conspiracy to import contrary to the Criminal Code the chemical found at the premises would be a "federally relevant criminal activity". The State offence of possession of the chemical contrary to the Drugs Misuse Act could, for example, have a "federal aspect" if that chemical were imported. Alternatively and in any event, the investigation of the State offence of unlawful possession might be incidental to the investigation of the Federal offences mentioned. 15 The definition of "intelligence operation" is such that there is no necessary statutory antipathy between such an operation and the asking of questions by the examiner that relate to a "federally relevant criminal activity". That is so even though the ACC Act also contemplates (s 7A(c)) that the ACC may, after Board authorisation, directly conduct "an investigation into matters relating to federally relevant criminal activity". 16 A summons under s 28 of the ACC Act to attend before an examiner must, "unless the examiner issuing the summons is satisfied that, in the particular circumstances of the special ACC operation/investigation to which the examination relates, it would prejudice the effectiveness of the special ACC operation/investigation for the summons to do so, set out, so far as is reasonably practicable, the general nature of the matters in relation to which the person is to be questioned", but that does not prevent "an examiner from questioning the person in relation to any matter that relates to a special ACC operation/investigation" – s 28(3) of the ACC Act. 17 The summons under s 28 served on the applicant requires him: (b) to give evidence of or about the following federally relevant criminal activity: (a) serious drug offences, contrary to Part 9.1 of the Criminal Code, which are punishable by imprisonment for a period of three years or more; and (b) other unlawful activities that are related to or connected with those activities and that involve relevant offences against a law of a State that have a federal aspect. 18 The transcript of the proceedings to date in respect of the summons discloses that the QPS officer with responsibility for the investigation in the course of which the search warrant was executed was present at the examination before the examiner at the time when the applicant by his counsel made the objection to the answering of questions which the examiner did not uphold and which led to the institution of this proceeding. It was common ground that this officer fell within the definition of "member of the staff of the ACC" in s 4 of the ACC Act. I infer that his presence was not coincidental and that it is inherently likely that this officer will, subject to any direction to the contrary by the examiner, be present at any continuation of the examination. 19 Also evident from the transcript of proceedings before the examiner is that neither at the time when the search warrant was executed nor at any time thereafter up to and including the time of when the examination was adjourned to enable the institution of the present proceeding has there been any intention on the part of the QPS investigating officer or any other person to charge the applicant with an offence. It was though accepted in the proceedings before the examiner that, as a result of questions asked and answers given at the examination by the applicant that he might become "more of a focus" for an investigation directed to his being charged. 20 Another basis upon which the present proceeding was conducted was that the applicant had a lengthy association with another individual who was the prime target of the QPS investigation. Once again, the existence of any such association might be controversial in other proceedings but I proceed on this basis that there is such an association. I also infer from the status of the QPS investigating officer as a "member of the staff of the ACC" that this association is known to the ACC and, in particular, to the examiner and that investigating officer. 21 On the basis of the facts assumed and otherwise upon which this proceeding is being conducted, there exists in my view a reasonable basis upon which the applicant might apprehend that any answer to any question at the examination relating to the drum, the chemical it contained, the delivery docket and the circumstances of that delivery, his presence at the premises or his association with the other individual might tend to incriminate him. Further, objectively, those same facts provide a basis upon which one might reasonably suspect that the applicant may have committed one or the other at least of the offences to which I have referred. 22 It is settled that the ACC Act abrogates the privilege against self-incrimination: A v Bolton (2004) 136 FCR 420 (A v Bolton). However, that privilege is distinct from " '[t]he fundamental principle that the onus of proof beyond reasonable doubt rests on the Crown' and its 'companion rule that an accused person cannot be required to testify to the commission of the offence charged' ": X7 v ACC at [102] per Hayne and Bell JJ, referring to observations made by Mason CJ and Toohey J in EPA v Caltex Refining Co at 503. 23 In his careful and concise submissions for the applicant, Mr Hoare put at the forefront a further passage from the joint judgment of Hayne and Bell JJ in X7 v ACC where, at [105], their Honours observed: The notion of an accused person's "right to silence" encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial. [Emphasis added] 24 Also to be noted is their Honours' earlier (at [101]) observation that, "the whole of the process for the investigation, prosecution and trial of an indictable Commonwealth offence is accusatorial" (emphasis added). 25 In X7 v ACC, in expressing her agreement with the answers to the case stated proposed by Hayne and Bell JJ, substantially for the reasons which they gave, Kiefel J, at [160] observed: The common law principle is fundamental to the system of criminal justice administered by courts in Australia, which, as Hayne and Bell JJ explain, is adversarial and accusatorial in nature. The accusatorial nature of the system of criminal justice involves not only the trial itself, but also pre-trial inquiries and investigations. This is recognised by the statutory provisions to which their Honours refer. [Emphasis added] 26 Based on these observations and, in particular, the portions emphasised, it was submitted for the applicant that the privilege of silence extended to an examination such as that which the examiner proposed to conduct pursuant to the summons. The privilege was said to be enlivened not only when a person was charged. It was put that even though neither the determination nor the summons made any express reference to the applicant or even to the incident of the execution of the search warrant, there was an inference to be drawn that the examination would necessarily traverse matters relating to the drum, the chemical it contained, the delivery docket and the circumstances of that delivery, his presence at the premises and his association with the other individual. I accept that such an inference is open. On a reading of the transcript of the examination, that appears to be why it was accepted by the examiner that, as a result of the examination, there might be more of a focus on the applicant. 27 The objection which was taken on behalf of the applicant at the examination was not taken in response to a specific question or suite of questions on these subjects. In some cases, that can present difficulties for a person when later seeking to vindicate a claim for privilege: A v Bolton at 440. In other cases, a consideration of the wider background circumstances against which a privilege claim comes to be made may enable a court to infer that any question might violate that privilege. In this case, no point was taken for the respondents that the present application was flawed because the claim was of a blanket nature, unrelated to any particular question. The submission made by the respondents in respect of the determination and the summons was of a different nature. That was that neither was directed specifically to the investigation of the applicant. This was, it was submitted, an "intelligence operation", not an investigation of an offence. These submissions of the respondents are correct in so far as they go but, as has already been demonstrated, there is no necessary antipathy in the ACC Act between such an operation and the asking of questions in relation to a "federally relevant criminal activity" at an examination under s 28. Therefore, it does not follow that the inference mentioned is not open. The examination is inherently likely to have this very particular focus in respect of the applicant. And that will remain so even if it additionally serves more generic, intelligence gathering ends. 28 If the privilege does indeed exist, even in the present absence of a charge in respect of an offence being made against the applicant, his being required to answer questions of the kind inferred would have a tendency to embarrass him in the conduct of a defence if he were, for example, charged with the importation or possession of or a conspiracy to import contrary to the Criminal Code the chemical found at the premises or with the possession of it contrary to the Drugs Misuse Act. 29 It was a feature of the background facts against which X7 v ACC was decided that the appellant, X7, had already been charged. Later, in Lee v R (2014) 88 ALJR 656 at [31] (Lee v R), in a joint judgment, a Full Court of the High Court remarked that, in X7 v ACC, "a majority of this court held that the powers of compulsory examination given to the [ACC] were not to be construed as applying to persons already charged with offences the subject of the examination". That puts the extent of the criminal justice system and its accusatorial nature more narrowly than in the passages from X7 v ACC cited above but does reflect the actual decision on the facts of that case. 30 It was not necessary in Lee v R for the High Court to consider the extent of the privilege, because the focus in that case was on a later, unlawful publication of the transcript of an examination. That said, the examination in that case under New South Wales legislation analogous to the ACC Act was of persons who had not at that examination stage been charged with the commission of any relevant offence, though such charges were then in prospect. Against this background in Lee v R and prior to the remarks concerning X7 v ACC already mentioned, the High Court stated, at [28] – [29]: 28 The NSWCC Act provided extraordinary powers to the Commission to compel the giving of evidence by a person against the person's interest and which might incriminate the person. These powers were provided in order that the Commission could more effectively investigate serious and organised crime. But the NSWCC Act also provided safeguards. Section 13(9) obliged the Commission to make a direction prohibiting publication of evidence before it, if not to do so might prejudice the person's fair trial. If there was a risk of prejudice, s 13(9) required a direction to be made. Whether such a risk existed was a question to be assessed objectively. In considering that question, the Commission would be expected to adopt a careful approach reflecting the protective purpose for which the duty to make such a direction was imposed on it. A decision, inconsistent with that duty or purpose, to publish transcripts or documents which were, or should have been, the subject of such a direction would not be a decision which the Commission was empowered by the Act to make. 29 The making of a direction under s 13(9) was not the first, or the only, occasion on which the Commission was required to consider the possible effects of a compulsory examination on a person's trial. Section 13(5) required that the Commission determine who should (and, it would follow, who should not) be present at the private hearing. It could set at nought the protection afforded by s 13(9) if persons associated with the possible prosecution of the person giving evidence were present. These statements apply with equal force to the ACC Act, where s 25A(5) and s 25A(9) are cast in like terms to s 13(5) and s 13(9) respectively in the New South Wales Crime Commission Act 1985 (NSW) (NSWCC Act), referred to in the passage quoted. 31 There is a reference to s 25A(9) of the ACC Act in the joint judgment of Hayne and Bell JJ in X7 v ACC. That reference is responsive to a submission made on behalf of the ACC and the Commonwealth in that case that the ACC Act should be read as "specifically contempla[ting] that examination powers may be used after charges have been laid": X7 v ACC, at [82]. As to this submission, their Honours stated: [83] Contrary to the assumption that necessarily underpinned the submissions made by the ACC and the Commonwealth, the reference in s 25A(9) (and the similar reference in s 29A(2)) to prejudice to "the fair trial of a person who has been, or may be, charged with an offence" does not deal specifically with the case of the person being examined having also been charged with an offence. The words used are sufficiently general to include that case, but they do not deal directly or expressly with it. The words used in s 25A(9) (and in s 29A(2)) have ample work to do in respect of the examination of persons who may be suspected of wrong-doing but who, before examination, have not been charged with any offence. It is the generality of the words used in the ACC Act, including in ss 25A(9) and 29A(2), and the absence of specific reference to examination of a person who has been charged about the subject matter of the pending charge, which presents the issue for determination in this case. [Emphasis in original] 32 At least in this passage, Hayne and Bell JJ allow that the ACC Act contemplates that an examination may be conducted of "persons who may be suspected of wrong-doing but who, before examination, have not been charged with any offence". There is nothing in the separate, general concurrence of Kiefel J in X7 v ACC with their Honour's reasoning which would suggest that her Honour held any different view. 33 The very point taken by the present applicant in respect of his examination was not taken at an anterior stage in Lee v R by those subject to an examination summons under the NSWCC Act. 34 X7 v ACC also fell for consideration by the High Court in Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 (Lee v NSWCC) but that case concerned a curial examination pursuant to the Criminal Assets Recovery Act 1990 (NSW), not an examination by an officer of the Executive under legislation analogous to the ACC Act. This was regarded by the majority in Lee v NSWCC as an important feature distinguishing that case from X7 v ACC. Lee v NSWCC is an authority which distinguishes rather than calls into question the correctness of X7 v ACC. Further, by the time of the application for the examination in Lee v NSWCC, Mr Lee and his fellow appellant had been charged with relevant offences. 35 I was also taken in the submissions of the respondents to certain intermediate appellate decisions concerning examinations of the present kind but these were decided prior to X7 v ACC and are thus, with respect, apt to mislead as to the true construction and application of the ACC Act. I have not for that reason sought to derive any assistance from them. 36 Another submission made on behalf of the respondents was that the emphasised passages in the judgments of Hayne and Bell JJ and Kiefel J in X7 v ACC were but obiter dicta. As I understood it, this was in support of their submission that the privilege concerned was applicable only to persons who had been charged with an offence. It is a mistake to conflate the nature and extent of any common law principle with the application of that principle to particular facts. That aside, the emphasised passages in X7 v ACC represent an elucidation of a common law principle and conclusions as to the construction of a Federal statute its interaction with that common law principle by a majority of the High Court. In Lake v Quinton [1973] 1 NSWLR 111 at 133-134, Street CJ in Eq (as his Honour then was) observed of judgments delivered in the High Court in respect of the meaning of particular Federal legislation: It seems to me unnecessary, indeed profitless, to embark upon a close analysis of what may be the ratio of Johnston v. Krakowski and of what may be relegated to the realm of mere dicta. There is a clear statement of the opinion of four justices upon the law, and in my view it is for the State courts to accept and apply that preponderant view. If the matter is to be reconsidered and any different view endorsed, then that is a matter for the High Court itself. There would, I consider, be an undesirable inconsistency, at variance with the whole basis of the doctrine of precedent, to countenance a situation arising in which State courts take too freely upon themselves the right of analysing or drawing fine distinctions in the face of such clear statements as those put forward by the majority of the justices in Johnston v. Krakowski. In my respectful opinion, what was said by Street CJ in Eq applies with equal force to this Court. Since then, in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134] and [158], it has been held that intermediate appellate courts (and thus, a fortiori, courts exercising original jurisdiction) are obliged to follow clear statements of principle by the High Court even though they do not form part of the ratio decidendi of the High Court case concerned. If the privilege is to be confined only to circumstances where a person has been charged that is for the High Court to determine on a reconsideration of X7 v ACC. 37 It might perhaps be thought that the conclusion just reached dictates that the present case should be resolved in favour of the applicant but this would be to ignore what was said of s 25A(9) by Hayne and Bell JJ in X7 v ACC at [82], with the general concurrence of Kiefel J. If that subsection and for that matter s 29A(2) of the ACC Act are to have "ample work" left to do, that work must be "in respect of the examination of persons who may be suspected of wrong-doing but who, before examination, have not been charged with any offence". Putting the applicant's position at its highest, that is the present case. In this regard, the view of the majority, as expressed in X7 v ACC at [82], is consistent only with a conclusion that, though the privilege does extend to pre-charging investigations and inquiries, the ACC Act does permit the examination under compulsion of persons "who may be suspected of wrong-doing but who, before examination, have not been charged with any offence". In other words, Parliament has chosen, to this extent, to "whittle down" the privilege. The protection of the fair trial of such persons is, in the first instance, to be found in the exercise, in particular circumstances, of the powers found in s 25A. So much flows by analogy from Lee v R at [28]-[29]. 38 In relation to the exercise of those powers, the examiner has foreshadowed that she would be disposed to make an order in the following terms: … limiting the publication of the evidence [at the applicant's examination] to [the ACC] … and a particular team within the [QPS] for confidential intelligence purposes only and that the information is not to be released to the Queensland Director of Public Prosecutions for any prosecution against the witness and that the information is not to be released to the Commonwealth Director of Public Prosecutions other than for any prosecution under [the ACC Act] to do with failure to answer, give misleading answers etc. This does not provide a basis for any present apprehension that the examination will necessarily be conducted in a way calculated to prejudice the fair trial of the applicant in the event that he is charged. 39 In Lee v R, at [29], the High Court contemplated that a power akin to s 25A(5) of the ACC Act might in a particular case be exercised so as to exclude from being present during an examination "persons associated with the possible prosecution of the person giving evidence". In my view, the class of persons thus described is not limited to persons in the office of a Director of Public Prosecutions but extends to police officers and others investigating the possible commission of offences. Even though a non-publication order of the kind foreshadowed by the examiner may be made, it is by no means impossible to see how a police or other investigating officer who is present might be inspired to pursue other lines of inquiry directed to the gathering of evidence for the prosecution of an examinee just by hearing that person's evidence under examination. The pursuit of such lines of inquiry might not necessarily violate a non-publication order but might well nonetheless prejudice the examinee's fair trial were he to be charged. 40 Thus far, the QPS lead investigator who is a "member of the staff of the ACC" has, without objection, been present during the applicant's examination. That examination has not, because of the need to resolve the present controversy, progressed to the point of questions being directed to the applicant on substantive issues. If, upon the resumption of the examination, such an objection is taken, it will, in the first instance, be for the examiner to decide whether that investigator ought to be excluded. If the applicant is aggrieved by that decision, it would be possible to seek its judicial review in this Court: Lee v R at [30]. 41 It follows that the application must be dismissed, with costs. 42 In the taxation of those costs, no allowance is to be made by the registrar for costs of or incidental to travel and accommodation expenses in respect of the respondents' counsel. Lest it be thought otherwise, that direction is in no way a reflection on Ms Maharaj QC, whose submissions on behalf of the respondents were helpful. Like all of those whose name appears on the roll kept under the Judiciary Act, she is entitled to appear as of right in this Court and in any other court exercising Federal jurisdiction. That is so even though her chambers are located in South Australia. The direction, which was made following my raising of the subject with the parties, is nothing more than reflective of a commendably fair, responsive concession on the part of the respondents that there was an element of preferential choice on the part of their solicitor in the retention of counsel, rather than a dearth of suitable locally available counsel. Parties are entitled by their solicitors to make such choices in the retention of counsel but it does not follow that, on any party and party taxation, the unsuccessful party must subsidise them. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 16 July 2014